$ 


■ 
■ 
m 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


PRACTICAL  TREATISE 


LAW  OF   REPLEVIN 


UNITED     STATES; 


APPENDIX  OF  FORMS, 


DIGEST   OF   STATUTES. 


BY 

PHINEAS   PEMBERTON   MORRIS. 


SECOND  AND  REVISED  EDITION. 


PHILADELPHIA: 
KAY  &  BROTHER,  19  SOUTH  SIXTH  BTREET, 

LAW  PUBLISHERS,  BOOKSELLERS,  AND  IMPORTERS. 
18G9. 


1 


Entered  according  to  the  Act  of  Congress,  in  the  year  1849,  by 

JAMES  KAY  &  JOHN  I.  KAY,  trading  as  James  Kay,  Jun.  &  Brother, 

In  the  Office  of  the  Clerk  of  the  District  Court  of  the  United   States,  in  and  for 
the  Eastern  District  of  Pennsylvania. 


Entered  according  to  Act  of  Congress,  in  the  year  1869,  by 

KAY  &  BROTHER, 

In  the  Office  of  the  Clerk  of  the  District  Court  of  the  United  States,  in  and  for 
the  Eastern  District  of  Pennsylvania. 


4 


y-*~> 


PHILADELPHIA: 
COLLIXS,  PRINTER,  705  JAYNE  STREET. 


PREFACE  TO  THE  SECOND  EDITION. 


A  second  edition  of  the  Treatise  on  Replevin 
has  been  long  called  for.  It  is  now  presented  to 
the  public,  after  a  careful  re-examination  and  cor- 
rection of  the  text,  and  comparison  of  the  autho- 
rities. The  cases  decided  since  1849  have  been 
examined,  and  whenever  any  new  point  has  been 
made,  or  an  old  one  received  fresh  illustration,  the 
case  has  been  added  to  the  list  of  citations,  and 
the  point  incorporated  in  the  text.  Some  addi- 
tional explanations  of  matters  of  practice  have 
been  introduced,  which  it  is  hoped  will  render  the 
book  more  valuable  to  the  practising  lawyer.  The 
Massachusetts  and  ^New  York  Statutes  printed  in 
the  Appendix  arc  the  statutes  as  they  now  stand. 

P.  P.  MORRIS. 

August  3,  1869. 


PREFACE  TO  THE  FIRST  EDITION. 


There  is  no  part  of  the  law,  unblended  with 
public  jurisprudence  or  politics,  which  has  been 
more  obviously  improved  in  the  United  States  than 
Replevin.  From  the  cumbrous  weapon,  useful 
only  in  a  narrow  field,  to  which  Coke  and  Gilbert 
were  accustomed,  it  has,  in  more  than  one-half  of 
the  United  States,  been  fashioned  into  the  ready 
instrument  for  the  adjustment  of  all  disputes,  in 
regard  to  the  ownership  of  personal  property.  In 
some  of  the  states,  Pennsylvania,  for  instance,  this 
improvement  has  been  the  result  of  time,  operating 
upon  early  colonial  customs,  occasionally  assisted 
by  judicial  legislation. 

In  other  states,  indeed  in  most  of  the  northern 
and  western  states,  the  law  has  been  codified,  and 
the  improvements  which  experience  suggested,  in- 
troduced; the  framework  of  the  action  remaining 
unchanged. 

The  present  work  originated  in  the  difficulty 

which  the  author  experienced,  on  an  occasion  in 


IV  PREFACE    TO    THE    FIEST    EDITION". 

which  he  was  called  upon  to  use  the  action  of  re- 
plevin. The  confused  and  unsatisfactory  form  in 
which  the  digests  and  reports  left  the  subject,  was 
not  essentially  relieved  by  a  reference  to  the  ele- 
mentary writers.  There  is  no  American  treatise 
on  the  subject.  The  works  of  Gilbert  and  "Wilkin- 
son, in  England,  have  attained  a  just  celebrity, 
and  are  well  known  in  the  United  States.  But, 
owing  partly  to  the  narrow  sphere  within  which 
the  remedy  is  confined  in  England,  and  partly  to 
the  dissimilarity  of  the  proceedings  in  the  two 
countries,  they  are  not  satisfactory  guides  to  the 
American  practitioner ;  yet  much  of  the  learning 
which  they  contain  is  of  essential  value  here.  The 
author  has  been  a  diligent  seeker  at  the  fountains 
of  his  subject  in  the  English  law,  and  has  spared 
no  labor  in  the  exploration  of  the  many  branches 
from  the  main  stream  which  abound  in  the  United 
States,  and  has  used  the  information  thus  obtained, 
principally,  in  illustration  of  the  action  as  it  exists 
in  Pennsylvania. 

The  plan  pursued  will  be  understood  at  once  by 
a  glance  at  the  table  of  contents.  The  work  is 
divided  into  chapters,  in  each  of  which  a  different 
head  is  treated,  carrying  the  reader  from  the  issu- 
ing of  the  original  writ  to  the  execution;  after 
which  follows  a  consideration  of  the  bond,  and  of 


PREFACE   TO   THE   FIRST   EDITION.  V 

the  liabilities  and  benefits  accruing  to  the  different 
parties  thereto,  and  of  the  method  of  proceeding  on 
the  bond.  To  which  is  added  an  Appendix  of 
Forms  and  of  Statutes,  including  such  parts  of  the 
Code  of  Procedure  of  New  York  as  bear  upon  this 
action,  and  the  chapter  of  the  Massachusetts  Re- 
vised Statutes  relating  to  Replevin ;  which  toge- 
ther give  a  very  clear  idea  of  the  character  of  the 
changes  which  have  generally  been  introduced  by 
the  legislation  of  the  northern  and  western  states. 

The  author  does  not  suppose  that  he  has  exhaust- 
ed the  theme,  or  that  he  may  not  have  fallen  into 
errors ;  those  who  best  understand  the  subject,  will 
easily  comprehend  how  improbable  it  is  that  he 
should  have  done  either.  But  he  hopes  and  be- 
lieves, that  he  has  placed  within  reach,  and  in  a  con- 
nected form,  information  which  cannot  elsewhere 
be  obtained,  but  at  the  expense  of  much  time  and 
labor. 

The  works  of  Gilbert  and  "Wilkinson  have  been 
freely  drawn  upon,  and  Mr.  Hammond's  jSTisi  Prius 

has  furnished  some  valuable  rules  on  the  subject  of 
avowries. 

Philadelphia,  March,  1849. 


ERRATA. 

Page  72,  for  Zachrisson  v.  Aluiau,  read  Zachrisson  v.  Ahinan. 

After  line  20,  on  page  107,  insert "  An  amendment  to  the  code  has  since 
introduced  a  provision  on  this  subject."    See  appendix,  page  385,  §  216. 

Page  160,  for  Crowther  v.  Barnsbotham,  read  Crowther  v.  Rams- 
bottom. 


CONTENTS. 


Table  of  Cases  Cited, 


4.3 

Ill 
115 

12:] 

161 


Chapter   I.     Replevin,  its  Origin  and  History, 
II.     For  what  Replevin  will  lie, 

III.  The  Writ  of  Replevin,      . 

IV.  The  Parties  in  Replevin,    . 
V.     Of  the  Declaration,    . 

VI.     Of  the  Pleas  in  Replevin, 
VII.     Of  the  Avowry, 
VIII.     The  Parties  to  an  Avowry, 
IX.     Of  the  Replication  and  of  Pleas  to  the 

Avowry, 

X.     The  Trial,  Evidence,  etc.,  . 
XL     Of  the  Judgment,     . 
XII.     Of  the  Costs  in  Replevin, 

XIII.  Of  the  Execution,     .... 

XIV.  Of  the  Writ  de  Homine  Replegiando, 
XV.     Of  the  Replevin  Bond,      . 

XVI.     Of  the  Declaration  and  Pleadings  in  the 

Action  on  the  Replevin  Bond, 
XVII.     Of  the  Proceedings  against  the  Shcrill'  foi 

taking  insufficient  Pledges,    . 
XVIII.     Of  the  Claim  Property  Bond,  . 
Appendix  I.    Forms  of  Process. 

Praecipe,        ...  .  291 


1<U 
17- J 
IS  i 
223 

247 

27] 

275 
281 


VI 11 


CONTENTS. 


Appendix  I.    Forms  of  Process. 

The  Writ  of  Replevin,  .         .         .     291 

de  Homine  Replegiando,  .         .     292 
The  Replevin  Bond,  as  used  in  New  York 

under  the  Revised  Statutes,      .         .     293 
The  Replevin  Bond  as  used  in  Pennsyl- 


295,  297 

298,  300 

.     302 

.     303 


vania,         .... 
The  Claim  Property  Bond,  . 
The  Writ  of  Retorno  Habenclo, 
Notice  of  Claim  of  Property, 
Appendix  II.    Forms  or  Pleading. 

Declaration  in  the  Detinuit,         .  304 

Detinet,  .         .         .     305 
Detinuit  and  Detinet,  306 

Plea  non  cepit, 301 

cepit  in  alio  loco,  .        .         .307 

admitting  Defendant  had  the  cattle 
in  the  locus  in  quo ;  but  took  them 
Damage  Feasant  in  another,      .     309 
Property  in  another,    .         .         .310 
Statute  of  Limitations,       .         .310 
Replication  to  Plea  of  the  Statute,      .     311 
Avowry  or  Cognizance  for  rent,  .         .     311 
Suggestion  in  nature  of  an  Avowry  on 
a  Judgment  against  the  Plaintiff  by 
default,  for  want  of  a  Declaration,  .     313 
Plea  in  bar,  Traverse  of  the  Demise,  .     314 
no  Rent  in  Arrear,   .         .     315 

in  eviction, 315 

by  a  Lodger  in  a  Tavern  or  Board- 
ing-house, whose  goods  have 
been  distrained  for  rent  due  by 
the  tenant,  .         .         .         .316 


CONTENTS. 

Appendix  II.    Forms  op  Pleading. 

Avowry,  Damage  Feasant,  . 

Plea  in  bar,  tender  of  amends  before 

impounding,     . 
Plea  in  bar,  denial  of  title,  . 

that  the  Cattle  escaped  through 
defect  of  Fences, 
Replication,  denial  of  liability  to  re- 
pair Fences, 
Replication,  denial  of  defect  of  Fences, 
Avowry   of    Distress,   for   arrears   of 

Ground-rent, 
Plea  in  bar  to  an  Avowry  for  Rent, 
that  Plaintiff  had  paid  an  equal  sum 
to  the  original  Ground-rent  landlord, 
Avowry  by  one  Tenant  in  Common,    . 
Declaration  on  Replevin  Bond  against 
one  surety,    . 
against  Sheriff  for  taking 
insufficient     Securities, 
when  Replevin  was  not 
a  Distress,     . 
against  Sheriff  for  taking 
insufficient  Securities  in 
case  of  Distress,  . 
on   the    Claim    Property 
Bond,    .... 
Appendix  III.     Statutes. 

English  Statutes. 
Statute  of  Marlbridge,    . 
of  Gloucester, 
AVestminster  the  second,     . 
seventh  Henry  Eighth, 


IX 


i!7 


311 
319 

319 

321 
322 

32:; 


324 
326 

327 


335 


339 


345 
345 
346 
350 


COXTEXTS. 


Appendix  III.    Statutes. 

English  Statutes. 

twenty-first  Henry  Eighth, 
fourth  James  First,     . 
seventeenth  Charles  Second, 
eleventh  George  Second,     . 
Pennsylvania  Statutes. 
Act  of  1705,    . 
Act  of  21st  March,  1772, 
3d  April,  1799,     . 
25th  March,  1825, 
Massachusetts  Statutes,    . 
JSew  York  Code. 

Title  V.     Of  the  manner  of  com- 
mencing Actions, 
VII.    Claim  and  delivery  of  Per- 
sonal Propert}r,    . 


350 
353 

355 
358 

3G0 
361 
367 
368 
370 


J80 


381 


TABLE  OF  CASES 


Abbott  v.  Barry, 
Abercrombie  u.  Parkhurst, 
Ableman,  Booth  v. 
Abraxas,  Halstead  v. 
Acker  v.  Finn,   . 
Acker  v.  Wetherill, 
Adair,  Clark  v. 
Adams  v.  Boughton, 
Adams  v.  Dimcalf, 
Adams  u.  Grane, 
Adams  v.  LaComb, 
Adams,  Nightingale 
Adams,  Noble  v. 
Adams,  Pattison  v. 
Adams,  Thornton  v. 
Ahman,  Zachrisson  v 
Albany,  The  People  i 
Albright  v.  Pickle, 
Aldridge  v.  Harper, 
Alexander  u.  Harris 
Alger,  Eefford  u. 
Allen  r.  Darley, 
Allison.  Walt  man  v 
Atqos  v.  Ginnett, 
Ancora  v.  Burns, 
Anderson  u.  Dunn, 
Anderson,  Bradbury  c. 
Anderson,  Garner  r. 
Anderson  u.  Reynolds, 


46,  198 


79, 190 

129,  153,  1T6 
114 
•271 
264 
158 
,200 
214 
171 
16G 
158 
91 
190 
116 
158 
2,  7  7 
85 
L65 
213 
179 
2 

213 
144 
270 
100 
88,  132 
7'.' 
120 
165 


Xll 


TxVBLE   OF   CASES. 


Anderson  v.  Tallcott, 
Andrews,  Mounteney  v. 
Angel,  Banks  v. 
Applegate,  De  Bow  v. 
Archer  v.  Dudley-, 
Archer  v.  Hale, 
Armstrong,  Wright  v. 
Arnold  v.  Bailey, 
Arnold,  McNeil  v.     . 
Arnold,  Rogers  v. 
Arundel  v.  Trevill,     . 
Atkinson  v.  Holcorab, 
Aughenbaugh,  Warner  v. 
Aurand,  Smith  v. 
Auriol  v.  Mills, 
Austen  v.  Howard,    . 
Axford  v.  Perrett, 
Aylesbury  v.  Harve3T, 


Bacon,  Galvin  v. 
Baddeley,  Hatchett  r 
Badger  v.  Phinney, 
Badlam  v.  Tucker, 
Baile)r,  Arnold  v. 
Baile}-  v.  Baile}r, 
Baile}'  u.  Wright, 
Baker,  Butler  v. 
Baker  v.  Fales, 
Baker  v.  Howel, 
Baldwin  v.  Cash, 
Baldwin,  Dame  v. 
Baldwin,  Marston  v, 
Baldwin,  Mellan  u. 
Baldwin,  Sawyer  v. 
Ball,  Bradall  v. 
Balsley  v.  Hoffman, 
Bank  v.  Stubbs, 
Banks  v.  Angel, 


128 

. 

181 

119,  143, 

148 

. 

. 

251 

• 

264, 

276 
273 

47 
266 

78 

68,  126, 

128 

7 

2,111, 

134 
104 

118,  119, 

120 

202 

203 

149 

25 

1,264 

272 

260 

265 

84 

78 
112 

46,  72 

260 

266 

270 

179 

159 

46,72 

94 

100 

82 

46,  72 

124 

97 

.  22S 

,  231 

1 

33,  265 

,  266 
112 

1 

19,  14S 

,  148 

TABLE   OE    CASES. 


Xlll 


Banks  v.  Whetstone, 
Barker,  McFarland  u 
Barkle  <..  Luce, 
Barnby,  Harrison  v. 
Barnes  v.  Bartlett, 
Barnes  v.  Bullett, 
Barnes  v.  Lucas, 
Barr  v.  Hughes, 
Barrett  v.  Forrester, 
Barrett  v.  Warren, 
Barry,  Abbott  v. 
Bartlett,  Barnes  v. 
Bartlett  r.  Bartlett, 
Bartlett,  Bell  v. 
Bartlett  v.  Gibbs,      1 


95,  2 


Basset  v.  Manxel, 
Bastard,  Jeffrey  v. 
Baxter  v.  Graham, 
Beale's  Exr's  v.  Com. 
Bean,  Hartley  u. 
Beaumont  v.  Wood, 
Beebe  v.  Du  Baun, 
Bell  v.  Bartlett, 
Bell  v.  North,     . 
Bell,  Yaiden  v. 
Beunett,  Eldred  u. 
Bennett,  Knight  v. 
Bennett  v.  Lockwood, 
Berghoff  v.  Ileckwolf, 
Betts  v.  Lee, 
Bevan,  Perreau  v. 
Bevans,  Callum  v. 
Beyer  v.  Fenstermacher, 
Bilson,  Cross  v. 
Bird,  Galloway  v. 
Bishop,  Livingston  v. 
Bigelow,  Rowley  o.  . 
2 


1    9.V2 


54, 


144,  15; 


•79.. 


IT') 
124 

>,  162 

85 
113 

7.  280 
144 
195 

77.  7^ 

7'J 

85 

270 

200 

,  257,  262,  207,  274, 
278,284 
.     154 
266,  277,  280 
124,  277 
.     186 


.     14!) 
.      68 
.     200 
75 
.       47 
218,  28  ; 
.     179 
193, 196 
.     195 
.       90 
2,  274,  277.  278 
Kl.  174 
.     165 
.     128 
7  6 
.     216 
80,  87,  191 


9,2' 


XIV 


TABLE    OF    CASES. 


Blacknell,  Wart  on  v. 
Bladis,  ILindle  v. 
Blake,  Maurice  v. 
Blake,  Mennie  v. 
Blanchard,  Thurston  v. 
Boileau,  Perry  v. 
Bonner  v.  Coleman,  . 
Bonsall  v.  Comly, 
Boot  v.  Wilson, 
Booth  v.  Ableman,    . 
Boughton,  Adams  v. 
Boughton  v.  Bruce,  . 
Bovey,  Sir  R.'s  Case, 
Bower  v.  Martin, 
Bower  v.  Tallman,     . 
Bowles,  Coan  v. 
Bowles,  Cowne  v. 
Bowles  v.  Poor, 
Bowmaker,  Moore  v. 
Boyce,  Shepherd  v.    . 
Boyd,  Keite  v. 
Boyle  ex  parte, 
Boyson  v.  Coles, 
Bradbury  v.  Anderson, 
Bradley  v.  Michael,  . 
Bradley,  Potten  v.     . 
Brady,  Jameson's  Ex'rs  v 
Bradyll  v.  Ball, 
Brandu,  Evans  v. 
Branscomb  v.  Scarborough, 
Branscomb,  Wheeler  v. 
Bratton  v.  Mitchell, 
Bray  ton,  Faget  v. 
Brewer  v.  Fleming,    . 
Brewster's  Admr's  v.  Sterrett, 
Brewster,  Lloyd  v.    . 
Brierly,  Ormond  v.    . 
Briggs,  Efnmett  v.     . 


G2, 


68,  G 


270 
277 
43 
16 
82 
112 
201 
83 
149 
114 
214 
69,  78 
44 
18 
9,  100,  192 


68, 


25^ 


251 


163 

m 

158 

1,  273 

156 
124 

2,  259 
85 
79 
69 

116 
112 
229,  231 
55,  120,  266 
265,  267 
164 
124 
120 
95 
274 
87 
263 
189 


TABLE    OF    CASES. 


XV 


■ 

Bristow  v.  Wright, 
Brizsee  v.  Maybee, 
Brooke  v.  Willet, 
Broom  o.  Fox,   . 
Brown  v.  Caldwell, 
Brown  u.  Fitz,  . 
Brown  v.  Freed, 
Brown,  Jlenkels  u. 
Brown  v.  Sax,    . 
Brown  v.  Sims, 
Browne  v.  Dunnery, 
Browne,  y.  Floyd 
Browne  v.  Powell, 
Browne  v.  Sayce, 
Browne,  Watton  v. 
Browning,  M'GHl  v. 
Bruce,  Bougkton  v. 

Bruen,  Ogden  v. 

Buck,  Oolbath  v. 

Buckeridge,  Long  v. 

Buckley,  Ingalls  u. 

Burlington,  Gerrish  t 

Bui  fit,  Clark  v. 

Bulkier,  Handy  v. 

Bull,  Gibbs  v.    . 

Bull  v.  Sibbs,     . 

Buller,  (.'unices  v. 

Bullet,  Barnes  v. 

Bunning,  Hill  v. 

Burkhardt,  Lovett  v 

Burley,  Carlisle  v. 

Burn,  Mattaine  v. 

Burnell,  Groenvelt  v. 

Burns,  Ancora  v. 
Burr.  Vanbuskirk  v 

Burr,  Martin  v. 
Butcher,  Porter  u. 
Butcher,  Chapman 


0,  79,  1 


80, 


,19 


.  149 

.  261 
•  227 
195,  199 
94,  105 
.   40 
.  245 
.  1 66 
.   90 
.  1G6 
.  158 
.  217 
.  189 
44,  155,  ITT 
.  214 
.   82 
68,  69.  Ts 
.   47 
.  Ill 
.  195 
.   78 
,  190,  191 

.   110 

.  193 

.  279 

.  149 

.  225 

.  113 

.  115 
193,  21  I 

.  217 

.  103 

.  l.v.i 

.  100 

.  158 

.  47 

.  126 

.  259 


ST 


XVI 


TABLE   OF    CASES. 


Butler,  Baker  v. 
Byrd,  O'Hanlin  v. 
Byrt,  llallett  v. 

Cady  v.  Eggleston, 
Cahoon,  Tibbal  r. 
Caldwell,  Brown  v. 
Caldwell  v.  Cleadou, 
Campbell  v.  Phelps, 
Garden,  White  v. 
Carlisle  v.  Burley, 
Carrington,  Ferguson  v. 
Carroll  v.  Harris, 
Case  v.  Pettee,  . 
Cash,  Baldwin  v. 
Caulk,  "Warner  v. 
Cayward  v.  Doolittle, 
Certain  Logs  of  Mahogany, 
Chaffee  v.  Sangston, 
Chamberlain  ex  parte, 
Chambers,  Cleaton  v. 
Chambers,  George  v. 
Chambers,  Hunt  v.     . 

Chambers  v.  Hunt,    . 

Chambers,  Kensil  v.  . 

Chapin,  Pearsall  v.    . 

Chaplen,  Haselet  v. 

Chapman  v.  Butcher, 

Chapman  v.  Cluck,    . 

Chaustelleux,  Fairchild  v. 

Chevalier,  Rector  v. 

Chichester,  Crofut  v. 

Chinn  v.  Russel, 

Chuck,  Page  v. 

City  v.  Price,     . 

Clark  v.  Adair, 

Clark,  Bulfit  v. 

Clark.  Collier  i\ 


22 


. 

159 

. 

47 

48, 

106 

251 

6,  263, 

264 

94, 

105 

198 

. 

217 

. 

89 

. 

217 

137 

190 

130. 

175 

, 

251 

62, 

100 

165 

166 

. 

100 

. 

91 

.  282 

283 

72 

, 

192 

7 

2,  82 

68,69 

,  128 

190 

. 

143 

81 

. 

224 

. 

259 

, 

179 

111 

47 

. 

213 

. 

47 

177 

264 

46,  19b 

,  200 

. 

140 

175 

TABLE    OF    OASES. 


XV11 


Clark  v.  Connecticut, 
Clark.  Bale  v.    . 
Clark  o.  Keith, 
Clark,  Myers  v. 
Clark  r.  Neville, 
Clark,  Phenix  u. 
Clark  o.  Skinner, 
Clark,  Shipman  v. 
Clay  v.  Ins.  Co., 
Cleadon,  Caldwell  v. 
Cleaton  v.  Chambliss 

Clement  v.  Wright, 

Clemson  v.  Davidson 

Clerk  o.  Withers, 

Cliptam,  Moore  v. 

Cloggett  v.  Richards 

Coan  v.  Bowles, 

Cochran,  Finney  v. 

Cockley  v.  Pagrave, 

Coffin,  Everett  v. 

Coit  v.  Waples, 

Colbath,  Buck  u. 

Colburu,  Knapp  v. 

Cole,  Combes  v. 

Coleman,  Bonner  v. 

Coles,  Boyson  v. 

Coles,  Glower  v. 

College  of  Physicians,  Gr 

Collier  v.  Clark, 

Collier,  Whitesides  i 

Collins  v.  Evans, 

Collins,  London  v. 

Collins,  Towne  v. 

Colstonc  v.  Iliscolls 

Colville,  Twells  v. 
Colquhon,  Innes  v. 
Combes  v.  Cole, 
Comle}',  Bonsall  v. 


eenv 


ille  v 


27 


IT 


.     251 

T.". 
203,  221 
2TT.  ii T '. > 

101 

no 

100 
1G5 
198 
192 
95 
.  L90 
181 
103,118 
251 
103 
274 
114 
87 
47 
114 
204 
253, 256 
201 
85 
•271 
160 
it:- 
113 
69 
140 
82 
174 
27-"> 
143 
2:-:;.  256 
.      83 


XV111 


TABLE    OF    CASES. 


Commonwealth,  Beale's  Executors  v 
Commonwealth  u.  Kinnard, 

Commonwealth,  Meyers  v. 

Commonwealth  v.  Rees,    . 

Commonwealth  v.  Thompson, 

Concanen  v.  Lethbridge, 

Concannon,  Jones  v. 

Connecticut,  Clark  v. 

Conoway,  Lambden  v. 

Cooper  v.  Egginton, . 

Cooper  v.  Sherbrooke, 

Cook  v.  Green, 

Cope,  Hunt  v.    . 

Corbett  v.  Lewis, 

Cosens,  Gulliver  v.    . 

Cossey  v.  Diggons,  . 

Coursey  v.  Wright,  . 

Covenhoven  v.  Seaman, 

Cowes,  Leominster  Canal  Company 

Cowne  v.  Bowles, 

Cowperthwaite,  Oxley  v 

Cowperthwaite,  Wolgan  v 

Cox  v.  Grice, 

Grain,  Finehout  v. 

Crocker,  Smith  v. 

Crofut  v.  Chichester, 

Crogate's  Case, 

Crosby,  Page  v. 

Cross  v.  Bilson, 

Cross  v.  Peters, 

Cross,  Thompson  v. 

Crowther  v.  Ramsbottom, 

Crutchley,  Selbey  v 

Cullum  v.  Bevans, 

Cully  v.  Spearman, 

Cummings  v.  Gaun, 

Currier,  Greely  v. 

Curtis  v.  Grout, 


26 


144,  155,  11 


25 


186 
109 
276 
1,276 
277 
266 
195 
251 
250 
173 
254 
227 
170 
95 
72 
7,  188 
84 
240 
225 
171 
277 
229 
47 
99 
48 
213 
166 
78 
128 
87 
124 
160 
228 
46,  174 
162 
2,276 
252 
216 


TABLE   OF    (  A.SES. 


Curtis,  Poltz  v. 
Curtis  v.  Wheeler, 

Daggett  v.  Robbins, 

Dally  r.  Silly,    . 
Dame  v.  Baldwin, 
Darley,  Allen  v. 
Darling,  Sanders  v.  . 
Darnell  o.  Fitch, 
Dart  t).  Howe,    . 
Dauch,  Robinson  v.  . 
Dauphin  Dank,  Roberts  t1 
Davidson,  Clemson  u. 
Davies  v.  James, 
Davies,  Miller  v. 
Davis,  Ormsbee  v. 
Davis  v.  Tyde,   . 
Dawson,  Dong  v. 
Deacon,  Wright  v.     . 
De  Bow  v.  Applegate, 
Decker  v.  Livingston, 
Delabastide  v.  Reynell, 
Delancey,  Little  v.     . 
Delaney  v.  Fox, 
De  Mott  v.  lEagernian, 
Denio,  Hill  v.    . 
Depeyster,  Wheelwright 
Devine  ex  parte, 
De  Witt  r.  Morris,     . 
De  Witt,  Morris  v.     . 
De  Wolf  v.  Harris,    . 
Dias  v.  Freeman, 
Diggons,  Cossey  v.    . 
Dimcalf,  Adams  v.    . 
Dingley,  Seaver  v.     . 
Dobbinson,  Philpot  u. 
Dodd  v.  Joddrell, 
Donnell}T  v.  Dunn,     . 
Doolittle,  Cayward  v. 


144,  1 


.  195 

.  IT'! 

47,  63 
.  169 

.  82 
.  213 
.  27'.) 
.  1:M 
.  117 
.  87 
68,  9  \ 
.  174 
.  226 
.  106 
.  47 
.  179 
.  47 
242 
.  251 
.  112 
G2,  239 
.  133 
.  170 
.  D4 
.  116 
82,87 

.   2L".t 

.  103 

100,  193 

112,  126 

.  271 

55,  177.  1 VN 

.  171 

46,  78,  120 

.  144 

.  221 

.  273 

.  100 


XX 


TABLE    OF    CASES. 


Dorsey  v.  Gassaway, 

Drake  v.  Mitchell, 
Drummond  v.  Hopper, 
Da  Baun,  Beebe  v.     . 
Dudley,  Archer  v. 
Dunbar  v.  Dunn, 
Dunk  v.  Hunter, 
Dunn,  Anderson  v.    . 
Dunneiy,  Browne  v. 
Dyer  v.  Pearson, 

Earl  of  Bristol  v.  Wilsmor 
Easton  v.  Worth ington, 
Eaton  v.  Southby,     . 
Edmonds,  Lear  v. 
Edwards,  Etter  v. 
Edwards,  Rider  v. 
Edwards,  Vasper  v. 
Egginton,  Cooper  v. 
Eggleston,  Cady  v.    . 
Ehle,  Ely  v.       . 
Elclred  v.  Bennett,    . 
Elliott,  Evans  v. 
Elliott  v.  Potter, 
Elliott  v.  Powell, 
Ely  v.  Ehle, 
Emuiett  v.  Briggs,     . 
England  v.  Slade, 
English  v.  Dalbrow, 
Etter  v.  Edwards, 
Evans  v.  Brander, 
Everett  v.  Coffin, 
Evans,  Collins  v. 
Evans  v.  Elliott, 
Ewing  v.  Vanarsdall, 
Ex  parte  Chamberlain, 
Ex  parte  Devine, 
Ex  parte  Lawrence,  . 


.  193 
.  216 

47,  77 
.  68 
.  264 
250,  251,  253 
.  178 
88,  132 
.  158 
.   85 

79,  190 

82,  194,  197,  198,  199 

.   94 

65,  174,  180 

.  197 

.  251 

67,  183 

.  173 

.  251 

130,176 

218,283 
73,  76 
.  217 
95,  105 

130,176 
.  189 

167,178 
81,  108 
.  497 
55,  120,  266 
.  87 
.  69 
73,  76 

155,177 
.  72 
.  229 
.  242 


TABLE    OF    CASES. 


XXl 


Faget  v.  Brayton, 
Fairchild  v.  Chaustolleux, 
Fairman  v.  Pluck, 
Fales,  Baker  v.  . 
FarvelJ  v.  Keightly,  . 
Ferguson  y.  Carrington, 
Ferguson  v.  Tliomas, 
Fenstermacher,  Beyer  v. 
Pernie,  Huckman  v. 
Ferrers,  Schofield  v. 
Finch,  Slie  v. 
Findley,  Keaton  v. 
Finehout  u.  ('rain, 
Finn,  Acker  v.  . 
Finney  v.  Cochran, 
Fisher  v.  Whoollery, 
Fitch,  Darnell  v. 
Fitter,  Kneas  r. 
Fitz,  Brown  v.  . 
Fitzgerald,  Hai't  v. 
Fleet,  Skinner  v. 
Fletcher  v.  Marillier, 
Fletcher,  Sansford  v. 
Flickwise,  Bush  v. 
Floyd  v.  Browne, 
Pluck,  Fairman  v. 
Folkroad,  Muck  v. 
Forney.  Warner  v. 
Forrester.  Barrett  v. 
Forsyth,  Stone  v. 
Forty  v.  Imber, 
Fosset,  Mai travers  v 
Foster,  Porter  v. 
Foster,  Winnard  r. 
Foutz,  Miller  v. 
Fox,  Broom  v.  . 
Fox,  Delaney  v. 
Fox,  Staniforth  v. 


.    120 

.     Ill 
L65,  166,  181,  L88 
46,  :i 
224 

.  190 
.  69 
.  165 
.     175 

193,202 
.  181 
.  95 
99 
.  204 
.  274 
197,  214,  283 
.     124 

102,103 
.  46 
.  112 
.  239 
.  158 
.  1G7 
.  188 
.  217 
l65,  166,  187,  188 
.  111. 
.  179 
.  195 
.  226 
144,  155,  177 
.  129 
.       80 

203,  227 
.     283 

195,  199 
.  170 
.     119 


XXI 1 


TABLE    OF    CASES. 


Fox  v.  Northern  Liberties 
Franciscus  v.  Reigart, 
Frazer  o.  Fredericks, 
Freed,  Brown  v. 
Freedenbury  v.  Meeter, 
Fredericks,  Frazer  v. 
Frederick,  Siracoke  v. 
Freeman,  Dias  v. 
Freeman  v.  Howe, 
French  v.  Kent, 
French,  Root  v. 
Frey  v.  Leeper, 
Frisby  v.  Thayer, 
Frost  v.  Lowiy, 
Furgnson  v.  Thomas, 

Gainsford  v.  Griffith, 

Gallillee,  Turner  u.    . 

Galloway  v.  Bird, 

Galvin  v.  Bacon, 

Gam  on  v.  Jones, 

Gandal,  Pike  v. 

Gann,  Cummings  u. 

Gardiner  v.  Humphrej1", 

Gardner  v.  Lane, 

Gargrave  v.  Smith,    . 

Garner  v.  Anderson, 

Gassaway,  Dorsey  v. 

Gates  v.  Lownsbury, 

George  v.  Chambers, 

Gerrish,  Buffington  v. 

Gibbs  v.  Bartlett,     195,  229,  251,  2 


Gibbs  v.  Bull,    . 
Gildart,  Tesseyman  v. 
Gilmore,  Hall  v. 
Gingell  i\  Turnbull,  . 
Ginnett,  Amos  v. 


.  218 
141,  151,  152,  251,  323 
.  197 
.  245 
.  269 
.  197 
174,190 
.  271 
.  114 
.  150 
87,190 
.  229 
.  158 
.  81 
.   69 

.  265 
.  224 
72,76 
.   78 
.  209 
.  137 
252,  276 
.  115 
.  103 
.   78 
.  120 
.  193 
.   75 
72,  82 
80,  87,  190,  191 
},  253,  257,  262,  267,  274, 
278,284 
.  279 
.  275 
.   87 
267,  269,  283 
.  270 


COOPER  &  COOPER, 

ATTORNEYS  AT    LAW 
WfUVLlMiTON,  DEL. 

Ginrich,  Walter  v. 
Ginther,  Saltzer  v. 
Given,  Williams  v. 
Glower  v.  Coles, 
Godfrey's  Case, 
Gordon  o.  Harper, 
Gordon,  Hucker  v. 
Gordon  v.  Jenney, 
Good,  Musser  v. 
Goodluek,  Paul  v. 
Gould,  Lee  v.     . 
Gould  v.  Warner, 
Gowen  v.  Ludlow, 
Graham,  Baxter  v. 
Grane,  Adams  v. 
Gray,  Mayser  v. 
Gray,  v.  Nathans, 
Greely  v.  Currier, 
Green,  Cook  n. 
Green,  Loud  v. 
Green,  Osgood  v. 
Green,  Penrose  v. 
Green  v.  Walter, 
Greenville  v.  College 
Grejr,  Wilson  v 
Gresham  Life  Insurance  C 
Grice,  Cox  v.     . 
Griilith,  Gainsford  u 
Griffith,  Morgan  v. 
Griffith,  Stiles  v. 
Groenvelt  v.  Burwell 
Grout,  Curtis  v. 
Gulliver  v.  Cosens, 
Gundy,  Roland  v. 
Gurney  v.  Buller, 
Gwillim  v.  Holbrook 
Gwyllim  v.  Scholey, 


TABLE   OF    OASES. 


of  Physicians 


orap 


any, 


Leete 


12 


XX 11 1 

252 

87 
271 
L56 
68 
278 
]'.»:; 
22 6 
266 
69 
253,  267, 

57 

I.  277 

166 

231 

1TG 

252 

227 

89 

68 

192 

252 

160 

52,  133 

L75 

47 

265 

257 

83 

159 

216 

72 

81,  82 

225 

259 

279 


.8,  1! 


18,1 


XXIV 


TABLE    OF    CASES. 


Hagerman,  Be  Mott  v. 

• 

94 

Haight,  Peterson  v.  . 

.     165 

Hale,  Archer  v. . 

.     273 

Hale  v.  Clark,    . 

.       75 

Hale,  Pitts  v.    . 

.     124 

Hall  v.  Gilmore, 

.       87 

Hall,  Lowry  v.  . 

110,  192 

Hall,  Quincey  v. 

.     132 

Hallett  v.  Byrt, 

48,  106 

Hallett  v.  Mountstephen, 

.     263 

Hal  stead  v.  Abrams, 

.     271 

Hamerton  v.  Stead,  . 

.     179 

Hand,  Palmer  v. 

.     190 

Hand}',  Buckley  v.     . 

.     193 

Hanson,  Jackson  v.  . 

252,  259 

Hardy  v.  Metzgar 

.     197 

Hargrave  v.  Sherwin, 

.     177 

Harlan  v.  Harlan, 

68,96 

Harrel,  Postman  v.    . 

.     158 

Harris  v.  Smith, 

.   68, 

69,  88,  113 

Harris,  Carroll  v. 

130,  175 

Harris,  Be  Wolf  v.     . 

.     112 

Harris,  Phillips  v. 

.        .197 

Harrison  v.  Barnby,  . 

.      144,  155,  162 

Harrison  v.  M'Intosh, 

.      126,  169,  1U 

Harrison  v.  Wardle, 

.      260,  265 

Harrod  v.  Hill, 

.     202 

Harper,  Aldridge  v.  . 

273 

Harper,  Gordon  v.     . 

68 

Hartop,  Simpson  v.  . 

166 

Harvey,  Aylesbury  v. 

84 

Hart  v.  Fitzgerald,    . 

112 

Hartley  u.  Bean, 

.     225 

Haselip  v.  Chaplen,  . 

.     224 

Haswell,  Hayward  u. 

178 

Hastings,  Pilkington  v. 

.     189 

Hatchet  v.  Baddeley, 

.     112 

Hayes  v.  Lusby, 

.     101 

S^w^  J&  (M<± 


TABLE   OF   CASES 


Hays  v.  Mouille, 
Haythorn  v.  Rushford, 
Hayward  v.  Haawell, 
Heacock  v.  Walker,  . 

Head,  M\?any  v. 
Heaton  v.  Findley,    . 
Heckwolf,  Bergkoff  v. 
Hefford  v.  Alger, 
Ilegan  v.  Johnson,     . 
Heilbrenner,  Heist  v. 
Sellings  v.  Wright,   . 
Henderson  v.  Lauck, 
Henkels  '••  Brown,     . 
Henley,  Ward  v. 
Henston,  Snelgar  v.  . 
Hepburn  r.  Sewell,    . 
Hep  worth,  Lambert  v. 
Herdic,  Young  u. 
Hewson  v.  Hunt, 
Hicks  v.  McBride, 
Hicks,  Treverton  v.  . 
Hildeburn  v.  Nathans, 
Hill  v.  Banning, 
Hill  v.  Henio,    . 
Hill  v.  Miller,    . 
Hill  v.  Perrott,  . 
Hill,  Harrod  u.  . 

Hill,  Key  worth  v. 

Hill,  Weed  v.     . 

Hindle  v.  Blades, 

Hinsdale  Powel,  u.    . 

Hipon,  The  Southern  Plank  B 

Hirst  v.  .Moss,    . 

Hooker  r.  Striker, 

Hodgden  v.  Hubbard, 

Hoffman.  Balsley  v.  . 

Holbrook,  CJwillim  v. 

llolcomb,  Atkinson  <\ 


oad 


5,  1 


XXV 

.  178 

.  82 

.  7  ii 

.  95 

.  195 

.  2i  - 

.  17^ 

.  124 

9t,  i:;t 

SS.  90 
.     166 
.     268 
.     151 
.     216 
.    159 
.      95 
.       47 
.     2-:; 
.     151 
88,  185 
.     115 
.     116 
178,  170 
.       79 
.     202 
.     158 
.     135 
.     27  7 
203,  227 
.        '.'7 
.     100 
.     282 
.     190 
93,  265,  266 
.     259 
.     1<»4 


XXY1 


TABLE    OF    CASKS. 


Hollingsworth  v.  Napier, 
Holmes  v.  Wood, 
Holt  o.  Sambach, 
Hopkins  v.  Hopkins, 
Hopper,  v.  Drummond 
Horsford  v.  Webster, 
Hosaek  v.  Weaver 
Hoskins  v.  Robins, 
Howard  v.  Joknson, 
Howard,  Austen  v. 
Howel,  Baker  v. 
Howe,  Dart  v.    . 
Howe,  Freeman  v. 
Hubbard,  Hodgden  v. 
Hubbard,  Short  v. 
Huber,  Shearick  v. 
Hucker  v.  Gordon, 
Huckman  v.  Fernie, 
Hudd  v.  Ravenor, 
Hudson,  Hunter  v. 
Hughes,  Ban*  v. 
Humphrey,  Gardiner 
Humphrey,  Peer  o. 
Humphreys,  Pearce 
Hunt,  Chambers  v. 
Hunt  v.  Chambers, 
Hunt  v.  Cope,    . 
Hunt,  Johnson  u. 
Hunt  v.  Bound, 
Hunter,  Dunk  v. 
Hunter  v.  Hudson, 
Huntington,  Smith  i 
Hutchinson,  Bead  v. 
H utter,  Trapnall  v. 
Hyde,  Phillips  v. 

Ilsley  v.  Stubbs, 
Imber,  Forty  v. 


141, 


68, 


69,  2 


. 

87 

. 

130 

156 

166, 

172 

47 

,.77 
166 

82, 

197 
117 
210 

251, 

264, 

272 

94 

117 

114 

190 

13,  250, 

251, 

283 

.  68,  69 

82 

114 

278 
175 

.   64, 

165. 

179 

87 

144 

115 

79 

,89 

190 

76,277, 

278 

282 
190 

Gi 

,  69 

128 
170 

68 
268 
178 

87 

84 
190 

68 
176 

72 

.114 

.      144 

155 

.177 

TABLE    OF    (A 


XXV11 


Ingalls  *'.  Bnlkley,  . 
Ingersoll  v.  Sergeant, 
[ngersoll  o.  Emmerson, 
Ingersoll,  Naglee  v.  . 
Junes  v.  Colquhon,  . 
Irving  v.  Motley, 

Jackson  u.  Hanson,  . 
Jackson  v.  Rogers,    . 
Jacob  o.  King,  . 
Jacobson  v.  Lee, 
James,  Davies  v. 
James  r.  Moody, 
Jameson's  Exs.  v.  Brady, 
Jeffrey  v.  Bastard,     . 
Jenkins,  John  v. 
Jenkins  v.  Stearka,   . 
Jenney,  Gordon  v.     . 
Jennings,  State  v. 
Joddrell,  Dodd  v. 
John  v.  Jenkins, 
Johnson,  Ilegan  v.    . 
Johnson,  Howard  v. . 
Johnson  i>.  Howe, 
Johnson  v.  Hnddleston, 
Johnson  o.  Hunt, 
Johnson  v.  Johnson, 
Johnson  v.  Jones, 
Johnson,  Lamb  u. 
Johnson  o.  Lawson, 
Johnson  v.  Neale, 
Johnson  v.  Peck, 
Johnson  u.  Wollyer, 
Jones  '•.  ( loncannon, 
Jones,  Gamon  v. 
Jones,  Johnson  u. 
Jones  r.  Kitchen 
Jones  v.  .Morris, 
Jones,  AYhiteman  v. 


.  li;; 

.  190 

.  169,  170 

.  L43 

52,  85,  89,  190 

.  252, 

.  115 

.  109 

.   73 

.  226 

.  213 

.  112 

21 

6,  27  7.  280 

.  164 

.  193 

.  193 

46,  109 

.  267 

.  164 

.  178 

.  210 

.  176 

.  144 

.   68 

.   46 

. 

.  114 

.  225 

.  190 

47,  81,  ^7 

104,  176 

1 95 

.  209 

.  168 

.  166 

166,  U  7 

.  - 

XXVI 11 


TABLE   OF    CASES. 


Keightly,  Farvell  v.  . 
Keite  v.  Boyd,   . 
Keith,  Clark  v.  . 
Kempster  v.  Xelson, 
Kenney  v.  Simpson, 
Kensil  v.  Chambers, 
Kersop,  Walton  v.     . 
Kessler  v.  M'Couachy, 
Kessler,  M'Conachy  v. 
Keyworth  v.  Hill, 
Kilby  v.  Wilson, 
Kilday,  Mead  w. 
Kimball,  Willard  v.   . 
Kimball,  Young  v.     . 
Kimmel  v.  Kint, 
Kinar  v.  Shaw, 
King  v.  Orser,    . 
King,  Jacob  v. 
Kinnard,  Commonwealth 
Kint,  Kimmel  v. 
Kitchen,  Jones  v. 
Kitchen,  Robins  t/.     - 
Knapp  v.  Colburn,     . 
Kneas  v.  Fitler, 
Knight  v.  Bennett,    . 
Knight  v.  Smythe,     . 
Knowles  v.  Lord, 
Korse  v.  Waterhouse, 
Kunkleman,  Snyder  v. 

La  Comb,  Adams  v.  . 
Ladd  v.  North,  . 
Lakin,  Ward  v. 
Lamb  v.  Johnson, 
Lambden  v.  Conowajr, 
Lambert  v.  Hepworth, 
Land,  McArthurs  v. 
Lane,  Gardner  v. 


88,  17 


.  224 
.  124 
203,  228 
.  119 
.  116 
.  143 
6,129,176 
124,188 
188 
214 
79 
69 
83 
68 
257 
87 
109 
109 
109 
257 
166 
167,178 
264 
102,103 
179 
170 
6,  191,215 
251 
179 

158 
84 
115 
114 
251 
159 
112 
103 


TABLE    OF    CASES. 


XXIX 


Latimer,  TV.  B.  v. 

Lauch,  Henderson  v. 

Lawrence  ex  parte,    . 

Lawrence,  Weaver  v. 

Lawson,  Johnson  v. 

Lear  v.  Edmonds, 

Lecky  v.  M'Dermott, 

Lee  v.  Gould,     . 

Lee,  Jacobson  v. 

Lee,  Little  v. 

Lee,  Peirson  v. 

Lee,  Thompson  v. 

Leeper,  Frey  v. 

Leete  v.  The  Gresham  Life  Ins 

Leigh  v.  Shepherd,     . 

Leominster  Canal  Co.  v.  Cowel 

Leonard  v.  Stacey,     . 

Lesher  v.  Pierson, 

Lester  v.  McDowell, 

Lethbridge,  Concanen  v. 

Lethbridge,  Yea  v.     . 

Lev}-,  Shaw  v.   . 

Lewis,  Corbett  v. 

Lewis  v.  Master, 

Lewis,  Rex  v.     . 

Lindon  u.  Collins, 

Lingham  v.  Warren, 

Little  v.  Delancy, 

Little  v.  Lee, 

Livingston  v.  Bishop, 

Livingston,  Decker  v. 

Lloyd  u.  Brewster,     . 

Lockwood,  Bennett  v. 

Lockwood,  Waterbury  v 

Loeschman  v.  Machin, 

Long  y.  Buckridge,    . 

Longueville,  Poole  v. 

Lord,  Knowles  v. 

3 


Co., 


88,  r 


--. 

.  242 
40,  61,68,69 
225 

04,  nti.  L80 
81,  123 
09 
"73 
10G 
227 
88 
229 
175 
101 
225 
100 
57 
09 
200 
266 
80,113 
95 
78 
27."> 
140 
04,  105 
186 
106 
2it; 

112 

87 

:;.  196 

7"> 

79 

195 

109 

0,  191,215 


1'. 


XXX 


TABLE   OF   €ASES. 


Loud  v.  Green, 
Lovett  v.  Burkhardt, 
Lovejoy,  Mann  v. 
Lovejoy  v.  Murray, 
Low  v.  Martin, 
Lownsbury,  Gates  v. 
Lowry,  Frost  v. 
Lawry  v.  Hall,  . 
Lucas,  Barues  v. 
Luce,  Barkle  v. 
Ludlam,  Staniland  v 
Ludlow,  Gowen  v. 
Lurnsdem,  Metcalf  v 
Lusby,  Hayes  v. 
Lynch  v.  "Welch, 


Machiu,  Loeschrnan  v. 
Mackinley  v.  M'Gregor, 
Malbon,  Ryder  v. 
Maltravers  v.  Fosset, 
Mann  v.  Lovejoy, 
Mauscel,  Basset  v. 
Manuel  v.  Reath, 
Marillier,  Fletcher  v. 
Marks,  Sanderson  v. 
Marlowe,  Wadham  v. 
Marriott  v.  Shaw, 
Marsh  v.  Pier,   . 
Marston  v.  Baldwin, 
Martin,  Bower  v. 
Martin,  Burr  v. 
Martin,  Low  u. 
Master,  Lewis  v. 
Mather  v.  Trinity  Church 
Mattaine,  Burn  v. 
Matthews,  Morris  u.  . 
Maurice  v.  Blake, 
Maybee,  Brizsee  v.     . 


76,80,88 


.   89 
70,79,110,192,193,214 
179 
216 
112 
75 
81 
110,  192 
277,280 
.  124 
225,  226 
.   57 
.   79 
.  101 
.  190 


126, 


79 

130,174,175,190,191 
.  177 
.  129 
.  171) 
.  154 
.  168 
.  158 
112,  120 
.  149 
.  83 
174,190,192,197,218 
46,72 
47 
47 
112 
78 
94 
103 
251 
43 
267 


TABLE   OF   CA£ 


Mayser  v.  Gray. 
MA ii hiii-s  o.  Lane,   . 
M'Bride,  Hicks  v.      . 
M'Cabe  v.  Morehead, 
M'Clure,  Murgatroyd  o. 
M'Conachy,  Kessler  v. 
M'Crea,  Roe  v. 
M'Dermott,  Lecky  0. 
M'Donald  v.  Scaife, 
M'Dowell,  Lester  o. 
M'Farland  v.  Barker, 
M'Farland,  Simpson  v. 
M'Gill,  Browning  u. 
M'Gregor,  Mackinley  v. 
M'Hemy,  Seibert  w. 
M'llvaine,  Waples  o. 
M'Intosh,  Harrison  u. 
M'Knight  v.  Morgan, 
M'Mahon  v.  Sloan,     . 
M'Neil  v.  Arnold, 
M'Vey,  Patterson  v. 
Mead^u.  Kilday} 
Mead,  Robinson  v.    . 
Meaney  v.  Head, 
Meeter,  Freedenbiirg  v. 
Mellan  v.  Baldwin,    . 
Mennie  u.  Blake, 
Merce,  Williams  v.    . 
Merrick's  Kstate, 
Met  calf  v.  Lnmsden, 
Mctzgar,  Hard}r  v.     . 
Michael,  Bradley  v.  . 
Mildrum  v.  Snow, 
Miller  i\  Davies, 
Miller  v.  Foutz, 
Miller,  Hill  v.    . 
Mills,  Anriol  o. 
Mitchell,  BrattoB  *•.  . 


,80, 


ss. 


26,  1 


200.  i    ". 

.  124, 

.  31, 

.  194, 


30,  1 


7  1,  1  7">,  190, 
68,  111, 


233 
112 

j- ; 

284 
195 
188 

l-'.J 

176 

201 

82 

191 

174 

.     264 

126,  160,  171 

111 

S8 

78 

83 

60 

105 

72 

2 

124 

76 

100 

222 

79 

107 

69 

68 

106 

283 

165,  167,  178,  17!) 
149 
104 


.        87, 


XXX11 


TABLE   OF    CASES. 


.Mitchell,  Drake  v. 
Monges,  Phillips  v. 
Monille,  Hays  v. 
Moody,  James  v. 
Moore  v.  Bowmaker, 
Moore  v.  Cliptam, 
Moore,  Rogers  u. 
Moore  v.  Shenk, 
Moore  v.  Watts, 
Moore's  Appeals, 
Morehead,  M'Cabe  v. 
Morgan  v.  Griffith, 
Morgan,  M'Knight  v 
Morgan,  Rees  v. 
Morgan,  Smith  v. 
Morris  v.  De  Witt, 
Morris,  De  Witt  v. 
Morris,  Jones  v. 
Morris  v.  Matthews, 

Morris  v.  Parker, 

Morris,  Reeves  v. 

Morris  v.  Robinson, 

Moss,  Hirst  v.    . 

Moss,  Neave  v. 

Motley,  Irving  v. 

Mounteney  v.  Andrews, 

Mountstephen,  Hallett  v. 

Mowry  v.  Walsh, 

Muck  v.  Folkroad,     . 

Murdock  v.  Will, 

Murgatroyd  v.  M'Clure, 

Murray,  Lovejoy  v.  . 

Musser  v.  Good, 

Myers  v.  Clark, 

Myers  v.  Commonwealth, 

Naglee  v.  Ingersoll,  . 
Napier,  Hollings worth  v. 


.     216 
1G5,  1ST 

.   83 
.  213 
^7,  2T3 
103,  118 
.  217 
199,  202,  282,  283 
G2,  104,  214,  238 
.  274 
267,  284 
.  257 
.  Ill 
.  209 
.   90 
109,  193 
.  103 
166,  187 
.  251 
.  108 
.  113 
.  214 
.  100 
.  167 
52,  85,  89,  190 
.  181 
.  263 
80,  87,  190,  191 
.  116 
.  266 
.  195 
.  216 
.  226 
75,277,  279 
.  276 

169,  170 

.   87 


TABLE   OP   CASES. 


X  X  X  1 1  ] 


Nathans,  Hildeburn  v 
Neale,  Johnson  o. 
Neave  v.  Moss, 
Neblet  v.  Smith, 
Nelson,  Kempster  u 
Neville,  Clark  v. 
Neville  v.  Williams, 
Newell,  Oleson  v. 
Nightingale  v.  Adams, 
Nixon,  Woo'cls  v. 
Noble  v.  Adams, 
North,  Bell  v.    . 
North,  Ladd  v.  . 
North,  Potter  v. 
Northern  Liberties,  Fox  v 
Norton,  Tice  v. 
Norris,  Vaughn  u. 
Noyes,  Wills  v. 

Ogden,  Bruen  v. 
O'Hanlin,  Byrd  v. 
Oleson  v.  Newell, 
Olwine,  Pott  v. 
Ormond  v.  Brierly, 
Ormsbee  v.  Davis, 
Orscr,  King  v.    . 
Osgood  v.  Green, 
Osterhout  v.  Roberts, 
Oxley  v.  Cowperthwaite, 


Page  v.  Chuck, 
Page  v.  Crosbj-, 
Page,  Shuter  v. 
Pagrave,  Cockley  w 
Palmer  v.  Hand, 
Palmer,  Pullen  v. 
Palmer,  Rapp  v. 
Paugburn  v.  Pat  ridge, 


550,  2: 


1,2 


104,  1 


.  135 

I'.ni 

161 

9,  li  i 

11!) 

'.'7 
72.  283 
47 
91 
68 
190 
" 

84 

5,  153 

218 

144,  177 

260 

113 

47 
47 
47 
83,  113 

263 
■17 

109 
08 

216 

277 

177 
78 
134 
114 
190 
161 
80,  B5 
.       72 


XXXI V 


TABLE    OF    CASES. 


Parker,  Morris  v. 
Parkhurst,  Abercrombie  v 
Parkhurst,  Ryley  v. 
Parker  v.  Patrick, 
Partridge  v.  Swaby, 
Patrick,  Parker  v. 
Patrick,  State  v. 
Patriclge,  Pangburn 
Patterson  v.  M'Vey, 
Patterson,  Rous  v. 
Pattison  v.  Adams, 
Paul  v.  Goodluck, 
Pearce  v.  Humphrey 
Pearsall  v.  Ckapin 
Pearson,  Dyer  v. 
Peer  v.  Humphrey, 
Penrose  v.  Green, 
Penson  v.  Lee,  . 
People  v.  Albany, 
Perreau  v.  Bevan, 
Perrett,  Axford  v. 
Perrott,  Hill  v. 
Perry  v.  Boileau, 

Peters,  Cross  v. 

Peterson  v.  Haight, 

Pettee,  Case  v. 

Petts  v.  Hale,    . 

Phelps,  Campbell  v. 

Phenix  v.  Clark, 

Philbrick,  White  v. 

Phillips  v.  Harris, 

Phillips  v.  Hyde, 

Phillips  v.  Monges, 

Phillips  v.  Price, 

Phillips,  Seal  v. 

Phillips,  Pringle,  v. 

Phillips  v.  Whitsel, 

Philpot  v.  Dobbinson, 


68, 


69,  2^ 


L2 


6,  2' 


54,  259,  272,  2' 


.  108 

9,  153,  176 

.  154 

.  89 

.  69 

.  89 

.  136 

.     n 

.  83 
.  231 
.  116 

.  266 

1,  278,  282 

.   81 

.   85 

79,  89,  190 

.  192 

.  227 

.   83 

4,277,278 

260,  265 
.  79 
.  112 
.  87 
.  165 
.  251 
.  124 
.  217 
.  101 
.  217 
.  197 
.  176 

165,  187 

264,  271 
.  263 
.   87 

152,  159 
.  144 


TABLE   OF    CAS     3. 


XXXV 


Phinney,  Badger  v 
Phipps  v.  Boyd, 
Pickle,  Albright  v. 
Pierce  v.  Stephens, 

Pike  v.  G?ndall, 
Pilkington  v.  Hastings, 
Pilkington  v.  Trigg, 
Pine,  Trevilian  v. 
Pitcher,  Rogers  v. 
Pitt  v.  Shew,     . 
Plummer,  Taylor  v. 
Poltz  v.  Curtis, 
Poole  v.  Longncville 
Poor,  Bowles  v. 
Poor  v.  Woodburn, 
Pope  v.  Tillman, 
Porter.  Butcher  w. 
Porter  v.  Foster, 
Postman  v.  Harrell, 
Pott  v.  Ohvine, 
Potten  v.  Bradley, 
Potter,  Elliott  v. 
Potter  v.  North, 
Powell,  Elliott  v. 
Powel  v  Hinsdale, 
Powel  v.  Smith, 
Presgrave  v.  Saundei 
Price,  City  v.     . 
Price,  Phillips  v. 
Prideaux  v.  Warne, 
Pringle  u.  Phillips, 
Pullen  u.  Palmer, 
Purple  v.  Purple, 
Purple,  Purple  v. 

Quick,  Snedeker  v. 
Quin  u.  Wallace, 
Quincy  o.  Hall, 


46,  7  2 

.  in 

.  1 65 

.   69 

.  137 

.  189 

.    17 

.  188 

.  164 

.  119 

.  190 

.  1 95 

.  169 

.  L58 

.  203, 227 

.   lis 

.  120 

.   80 

.  158 

83.  113 

.  110 

.  217 

1C 

1.  115,  153 

95,  in:. 

203,  227 

.   94 

120,  12S 

.  204 

2G4,  271 

.   '.'1 

.   87 

.  161 

.  251 

.  25 1 

.   99,  L18 

G 

5,  180,  1-7 

132 


XXXVI 


TABLE    OF    CASES. 


Ramsbottom,  Crowther  v 
Etapp  c.  Palmer, 
Rappalo,  Stoughton  v. 
Ravenor,  Hudd  v. 
Read  v.  Hutchinson, 
Heath,  Manuel  v. 
Rector  v.  Chevalier, 
Rees,  Commonwealth  v. 
Rees  v.  Morgan, 
Reeves  v.  Morris, 
Reigart,  Franciscus  v. 
Reist  v.  Heilbrenner, 
Rex  v.  Lewis,    . 
Re3rnell,  Delabastide  v. 
Reynolds,  Stimpson  v. 
Reynolds  v.  Thorpe, 
Richards,  Cloggett  v. 
Rider  v.  Edwards, 
Riddle  v.  Welden, 
Robbins,  Daggett  v. 
Roberts  v.  Dauphin  Bank 
Roberts,  Osterhout  v 

Roberts  v.  Snell, 

Robins  v.  Kitchen, 

Robinson  v.  Dauch, 

Robinson  v.  Mead, 

Robinson,  Morris  v. 

Robinson,  Waterman  v. 

Roe  v.  McCrea, 

Rogers  v.  Arnold, 

Rogers,  Jackson  v 

Rogers  v.  Moore, 

Rogers  v.  Pitcher, 

Rogers,  Thompson  v 

Roland  v.  Gundy, 

Rong  v.  Dawson, 

Root  v.  Trench, 

Rose,  Thompson  v. 

Roseberry,  Weidel  v. 


141,  151,  15 


.  160 
80,  85 
68,  69 

64,  165,  179 
.  190 
.  168 
.   47 
261,  276 
.  209 
.  113 
2,  251,323 
.  124 
.  275 
62,  239 
.  108 
.  138 
.  251 
.  251 
.  166 
47,  63 
68,  94 
.  216 
.  145 
167,  178 
.   87 
.  105 
.  214 
.  174 
.  235 

68,  126,  128 
.  115 
.  217 
164, 167 
.  217 
81,  82 
.  47 
87,190 
.  80 
.  233 


TABLE    OF    CASES. 


WWII 


Round,  Hunt  v. 
Rous  v.  Patterson, 
Rowley  o.  Bigelow, 
Roys,  Swain  v. 
Rush  o.  Fiickwire, 
Rushford,  1  lay  thorn 
Russel,  Chinn  v. 
Russel,  Vausse  v. 
Ryder  o.  Malbon, 
Ryley  u.  Parkhurst, 


Saltzer  v.  Ginther,      . 
Sambach,  Holt  v. 
Sanders  u.  Darling,    . 
Sanderson  v.  Marks, 
Sangston,  Chaliee  v. 
Sansford  v.  Fletcher, 
Sapsford  v.  Fletcher, 
Sauerman  v.  Weckerly, 
Saunders,  Presgrave  v. 
Saville,  Ward  v. 
Sawyer  v.  Baldwin,    . 
Sax,  Brown  v.    . 
Sayce,  Browne  v. 
Say  ward  v.  Warren, 

Scaife,  McDonald  v. 

Scarborough,  Branscomb 

Schofield  v.  Ferrers,  . 

Scholey,  Gwyllin  v.    . 

Scott  v.  Waithman,    . 

Seal  v.  Phillips, 

Seaman,  Covenhoven  v. 

Seaver  v.  Dingley, 

Seibert  v.  M'Henry,  . 

Selbey  v.  Crutchley, 

Semayne's  Case, 

Sergeant,  Ingersoll  i\ 

Sewel,  Hepburn  v.      . 


so,  s: 


268 
231 
191 

47 

L88 

68 

47 

94 

177 

154 


252 
156 
219 

118,  L20 

282,  283 
.    107 
.    325 
.    124 
126,  128 
.    115 
.      97 
.      90 
144,  155,  177 
.      68 
194,  284 
265,  261 
193,  202 
.    219 
',279,  280 
.    263 
.    240 
46,  78,  L20 
68,  111,  174 
.    228 
.    in! 
.     143 
.    21G 


XXXV  111 


TABLE    OF    CASES. 


Shannon  v.  Shannon, 
Sharp  v.  The  United  States, 
Shaw,  Kendar  v. 
Shaw  v.  Levy,    . 
Shaw,  Marriott  v. 
Shaw  v.  Tobias, 
Shearick  v.  Huber, 
Shenk,  Moore  v. 
Shepherd,  Leigh  v. 
Sheppard  v.  Boyce, 
Sheppard  v.  Shoolbred, 
Sherburne,  Vickery  v. 
Sherlock,  Cooper  v. 
Sherwin,  Ilargrave  v. 
Shew,  Pitt  v.      . 
Shipman  v.  Clark, 
Shoolbred,  Sheppard 
Short  v.  Hubbard, 
Shuter  v.  Page, 
Sibbs,  Bull  v. 
Silly  v.  Dally,     . 
Sinicoke  v.  Frederick, 
Simpson  v.  Hartop, 
Simpson,  Kenney  v. 
Simpson  v.  M'Farland, 
Sims,  Brown  v.  . 
Sir  K.  Bovey's  Case, 
Six  Carpenters'  Case, 
Skinner,  Clarke  v. 
Skinner  v.  Fleet, 
Slade,  England  v. 
Slie  v.  Finch, 
Slingsby's  Case, 
Smith  v.  Aurand, 
Smith  v.  Crockett, 
Smith,  Gargrave  u. 
Smith,  Harris  v. 
Smith  v.  Huntington, 


.      72 
.    272 
.      87 
86,  113 
.      83 
251,  283 
68,  69,  82,  114 
197,  199,  202,  282,  283 
161 
156 
89 
130 
254 
177 
119 
106 
89 

141,  143,  250,  251,  283 
134 
149 
169 
171,  174,  190 
166 
116 
201 
166 
78 
75 
110 
239 
167,  178 
181 
154 
202,  203 
48 
78 
68,  69,  88,  113 
.      84 


TABLE   OF    CASES. 


Smith  u.  Morgan, 

Smith,  Niblet  v. 

Smith,  Powel  v. 

Smith  v.  Smith. 

Smith  o.  Walton, 

Smith,  Williams  v. 

Smith  v.  Williamson, 

Smith.  Wingate  v. 

Smythe,  Knight  v. 

Snecleker  v.  Quick,     . 

Snelgar  v.  Henston,   . 

Snell,  Roberts  v. 

Snow,  Mildrum  v. 

Snyder  v.  Knnkleman, 

Snyder  v.  Yaux, 

Souter  v.  Bej-more,    . 

Southb}',  Eaton  v. 

Southern  Plank  Road  v.  Hipon 

Spearman,  Cully  u.     . 

Sprenkler,  Zeigler  v. 

Stacey,  Leonard  u.     . 

Staniforth  v.  Fox, 

Staniland  w.  Ludlam, 

State  v.  Jennings, 

State  v.  Patrick, 

Steadman  v.  Rates,     . 

Steads,  Hamilton  v.  . 

Steake,  Jenkins  v. 

Stephens,  Pierce  v.    . 

Sterrett,  Brewster's  Admr 

Stiles  v.  Griffith,    _    . 

Stimpson  v.  Reynolds, 

Stone  v.  Forsyth, 

Stoughton  v.  Rappalo, 

Stradling,  Syllivan  v. 

Striker,  1  locker  v. 

Stubbs,  Bank  u. 

Stubbs,  Isley  c. 


40,  68 


,60, 


\  \  \  i  S 

.   90 
1  L9,  165 

.   94 
.   88 
.  1  13 
lc,:,.  209 
;•;.  68,  113 
.   90 
.  119 
99,  L18 
.  151 
.  145 
.   68 
.  K'.i 
90,  04,  95 
.  192 
.   '.'4 
.   '.a 
.  162 
.  272 
.  100 
.  IT'.' 
22:..  226 
46,  109 
.  136 
.  161 
.  IT'.) 
.  193 
.   69 
.  27  1 
.   83 
.  L08 
.  226 
68,  69 
L69,  LT8 
282 
.  112 
7  2,  114 


xl 


TABLE   OF    CASES. 


Sutton  v.  Way te, 
Swaby,  Partridge  u.  . 
Swain  v.  Roys,  . 
Syllivan  v.  Stradling, 

Tallcott,  Anderson  u. 

Tallman,  Bower  v. 

Tallman,  Pope  v. 

Tatham,  Underwood  u. 

Taylor  v.  Pluinmer,   . 

Taylor  v.  The  Royal  Saxon 

Taylor,  Trotter  v. 

Taylor  v.  Wells, 

Tajlor  v.  Zamira, 

Tesseyman  v.  Gildart, 

Thayer,  Frisby  v. 

Thayer  v.  Turner, 

The  People  u.  Albany, 

Thomas,  Furguson  v. 

Thomas,  Williams  v. 

Thompson  v.  Button, 

Thompson,  Commonwealth 

Thompson  v.  Cross, 

Thompson  v.  Lee, 

Thompson  v.  Rogers, 

Thompson  v.  Rose,  ' . 

Thornton  v.  Adams,  . 

Thorpe,  Reynolds  v. 

Thurston  v.  Blanchard, 

Tibbal  v.  Cahoon, 

Tice  v.  Norton,  . 

Tobias,  Shaw  v. 

Towne  v.  Collins, 

Train,  Wheeler  v. 
m 
Trapnall  v.  H utter,    . 

Treverton  v.  Hicks,    . 

Trevilian  v.  Pine, 

Treville,  Arundle  u.    . 


62, 


G8,  6! 


91, 


'■'4, 


193 


.    27? 

.      69 

.      47 

169,  178 

.    128 

,  100,  192 

.    118 

.      78 
.    190 
,  214,  283 
.    130 
.    112 
167,  170 
.    275 
.    158 
81,  82 
.      83 
.      69 
.    173 
.      84 
.    277 
.    124 
.      88 
.    217 
.,    80 
.    158 
.    138 
.      82 
56,  263,  264 
144,  177 
251,  283 
82 
69 
68 
151 
188 
72,  111,134 


TABLE    OF    CASES. 


Xli 


Trigg,  Pilkinton  v.     . 
Trinity  Church,  Mather  v. 
Trott  v.  Warner, 
Trotter  v.  Taylor, 
Tucker,  Badlain  o. 
Turnbull,  Gingell  v. 
Turner  v.  Gallillee, 
Turner,  Thayer  v. 
Turner,  Tumor  v. 
Turnor  v.  Turner, 
T  wells  v.  Colville, 
Tyde,  Davis  v.    . 


Underbill,  Webber's  Executors  v 
Underwood  v.  Tatham, 
United  States,  Sharp   v. 


Yaiden  v.  Bell,   . 
Yanarsdall,  Ewing  v 
Yanbuskirk,  Burr  v. 
Yasper  v.  Edwards, 
Yaughan  v.  Xorris, 
Vausse  v.  Russel, 
Yaux,  Snyder  v. 
Vickery  v.  Sherburne, 

Wadham  v.  Marlow, 
Waithman,  Scott  v. 
Walker,  Green  v. 
Walker,  Heacock  v. 
Walsh,  Mowny  v. 
Walter  v.  Ginrich, 
Waltman  v.  Allison, 
"Walton  v.  Kersop, 
Walton,  Smith  v. 
Waples,  Coit  v. 
Waples  v.  Mcllvaine, 
Ward  v.  Henley, 


.  47 
.  9  » 
.  31 
.  130 
.  260 
261,269,  283 
22  l 
81,  82 
2,  253,  254,  259,  214 
i2,  253,  254,  259,274 
.  275 
.    119 

.    124 
.      T8 

.    272 

.       47 

L55,  177 

.    L58 

6T,  183 

.    260 
.      94 
46,  68,  69,  90,  94.  95 
.    130 

.  149 
•7.  27'.'.  280 
.  2."' 2 
.  82 
80,  -7.  190,  191 
.  274 
.     144 

•;.  129,  176 
.  143 
.  47 
.    264 

.    268 


xlii 


TABLE   OF    CASES. 


Ward  v.  Lakin,  . 

Ward  v.  Laville, 

Wardle,  Harrison  v. 

Warne,  Prideaux  v.  . 

Warner  v.  Aughenbaugli,. 

Warner  v.  Caulk, 

Warner  v.  Tooney,    . 

Warner,  Gould  v. 

Warner,  Trott  v. 

Warren,  Barrett  v.     . 

Warren,  Lingham  v. 

Warren,  Sayward  v. 

Warton  v.  Blacknell, 

Waterbury  v.  Lockwood, 

Waterhouse,  Kerse  ■«. 

Waterman  v.  Robinson, 

Waterman  v.  Yea, 

Watson  v.  Watson, 

Watts,  Moore  v. 

Watton,  Browne  v. 

Wayte,  Sutton  v. 

W.  B.  v.  Latimer, 

Weaver,  Hosack  v. 

Weaver  v.  Lawrence, 

Webber's  Executors  v.  Underbill, 

Webster,  Horsford  v. 

Weckerley,  Sauerman  v. 

Weed  v.  Hill,    . 

Weidel  v.  Boseberry, 

Welch,  Lynch  v. 

Welch,  Williams  v.    . 

Welden,  Biddle  v.     . 

Wells,  Taylor  v. 

Wells,  Whitwell  v.    • 

Wetherill,  Acker  v.   . 

Wheeler  v.  Branscomb, 

Wheeler,  Curtis  v. 

Wheeler  v.  Train, 


II 


62,  1 


68,  1 


.     115 

.     115 

260,  265 

.       91 

,  119,  120 

165,  166 

.    no 

253,  267,  268 
.      87 
72,  77,78 
64,  165 
.       68 
.     270 
.       75 
.     251 
.     174 
.     260 
•       4? 
04,  214,  238 
.     214 
.     277 
.       91 
82,  197 
61,  68,  69 
.     124 
.     166 
.     124 
.     135 
.     233 
.     190 
.     104 
.     166 
.     118 
30,  134,  201 
.     158 
.     164 
.     173 
.       69 


46 


TABLE   OF   CASES. 


xliii 


Wheelock  u.  Cozzens, 
Wheelright  v.  Depeyster, 

Whetstone,  Banks  v. 
White  v.  Oarden, 
White  r.  Philbrick,   . 
Whiteman  v.  Jones,  . 
Whitsed,  Phillips  o. 
Whitesidea  u.  I  'oilier, 
Whitwell  r.  Wells,     . 
Whooleiy,  Fisher  v.  . 
Willard  u.  Kimball, 
Willet,  Brooke  v. 
Williams  v.  Given,    . 
Williams  v.  Merle,     . 
Williams,  Neville  v. . 
Williams  v.  Smith,    . 
Williams  v.  Thomas, 
Williams  v.  "Welch,    . 
Williams,  Wright  v. 
Williamson,  Smith  v. 
Will,  Murdock  v.      . 
Wills  v.  Noyes, 
Wilsmore,  Earl  of  Bristol 
Wilson,  Boot  v. 
Wilson  v.  Grey, 
Wilson,  Kerby  v. 
Wingate  v.  Smith,     . 
Winnard  v.  Foster,   . 
Winston  v.  Leonard, 
Withers,  Clerk  v. 
Woglan  v.  Cowpcrtlnvaite 
Wollyer,  Johnson  n. 
Wood,  Beaumont  v.  . 
Wood  &  Foster's  case, 
Wood,  Holmes  1>. 
Woods  v.  Xixon, 
Worthington,  Easton  v. 
Wright  v.  Armstrong, 


68,  1 

.       1 


250,  2 


137,  1 


118,1 


82,  194,  1 


18 

B2,  81 

.     'JIT 

.     250 

152,  L59 

.     11:; 

tO,  134,  201 

IT,  214,  283 

.       83 

.     227 

.       87 

87,  199 

1.  272.  283 

165,  209 

.      17.'] 

.     104 

18,  159,  162 

46,  68,  L13 

.     266 

.     113 

79,  190 

.     149 

18,  132,  133 

.        7!) 

.       90 

203,  22? 

.     189 

.     1-1 

.     229 

104,  176 

.     149 

.     157 

.     130 

.       68 

7.  198,  199 

.        17 


xliv 


TABLE   OF    CASES. 


Wright,  Bailey  v. 
Wright,  Bristow  v.  . 
Wright,  Clement  v.  . 
Wright,  Coursey  v.  . 
Wright  v.  Deacon,  . 
Wright,  Hellings  v.  . 
Wright  v.  Williams, . 
W}Tnne  v.  Wynne,     . 

Yea  v.  Lethbridge,  . 

Yea,  Waterman  v.  . 
Young  v.  Herclic, 

Young  v.  Kimball,  . 

Zachrisson  v.  Ahman, 
Zamira,  Taylor  v. 
Zeigler  v.  Sprenkle,  . 


1T9 

149 

95 

84 

242 

97,  137 

137,  138,  159,  162 

162 

266 

260 

95 

68 

72,  77 
167,  170 

272 


THE 


LAW    OF   REPLEVIN 


CHAP  TEE    I. 

REPLEVIN,    ITS    ORIGIN    AND    HISTORY. 

Replevin,  as  defined  by  Chief  Baron  Gilbert. 
is  the  remedy  given  the  party  to  controvert  the 
legality  of  a  distress,  in  order  to  bring  back  the 
pledge  to  the  proprietor,  in  case  the  distress  were 
unlawfully  taken  and  without  just  cause.  Black- 
stone  says,  to  replevy  (replegiare,  to  take  back 
the  pledge),  is  where  a  person  distrained  upon, 
applies  to  the  sheriff  or  his  officers,  and  has  the 
distress  returned  into  his  possession,  upon  giving 
good  security  to  try  the  right  of  taking  it  in  a  suit 
at  law,  and,  if  that  be  determined  against  him,  to 
return  the  cattle  or  goods  once  more  into  the  hands 
of  the  distrainor.  The  definition  of  Spelman  is 
more  comprehensive  and  more  accurate  than  either. 
He  says:  A  replevin  is  a  justieial  writ  to  the  sheriff, 
complaining  of  an  unjust  taking  and  detention  of 
goods  or  chattels ;  commanding  the  sheriff  to  de- 


46  REPLEVIN,  ITS    ORIGIN 

liver  back  the  same  to  the  owner  upon  security 
given  to  make  out  the  injustice  of  such  taking,  or 
else  to  return  the  goods  and  chattels. 

Neither  of  these  definitions  is  broad  enough  for 
replevin  in  Pennsylvania,  which  may  be  defined  to 
be,  the  remedy  for  the  unlawful  detention  of  per- 
sonal property,  by  which  the  property  is  delivered 
to  the  claimant  upon  giving  security  to  the  sheriff 
to  make  out  the  injustice  of  the  detention,  or  return 
the  property.1 

This  definition  will  apply  to  the  action  of  re- 
plevin in  the  following  named  States ;  viz. : 
Maine,2  New  Hamp shire,3  Vermont,4  Massachu- 
setts,5   New     York,6     Ohio,7    Maryland,55    Dela- 

1  "Weaver  v.  Lawrence,  1  Dall.  157.  Snyder  v.  Taux,  2  R. 
428. 

2  Revised  Statutes  of  Maine,  587,  A.  D.  1857.  Seaver  v. 
Dingley,  4  Greenl.  315. 

3  Brown  v.  Fitz,  13  New  Hamp.  283. 
*  Stat,  of  Yt.,  tit.  Replevin. 

5  Badger  v.  Phinney,  15  Mass.  359.  Baker  v.  Fales,  16 
Mass.  147.  Marsten  v.  Baldwin,  17  Mass.  606.  See  App.  Stat, 
of  Mass. 

6  See  Appendix,  New  York  Code. 

7  Revised  Stats,  of  Ohio,  p.  997,  Ed.  1860.  State  v.  Jen- 
nings, 14  Ohio  State  R.  73. 

8  Cullum  v.  Bevans,  6  Har.  &  J.  469.  Smith  v.  William- 
son, 1  Har.  &  J.  147. 


AM)    BISTORT.  17 

ware,1  Kentucky,2  ZNTi ^-< >u  1  i, :  Wisconsin,4  Arkan- 
sas,5 Tennessee,6  Michigan,7  Indiana/  Minnesota,9 
and  Rhode  Island.10 

In  Xew  Jersey,11  Illinois,12  Georgia  and  South 
Carolina,13  the  taking  must  be  unlawful. 

In  Virginia,14  Georgia,1"'  Connecticut,10  and  Ala- 

1  Clark  v.  Adair,  3  Harrington,  115.  See  contra  John 
v.  Johnson,  4  Harrington,  171.  and  Drummond  v.  Hopp< 
Harrington,  327.     Revised  Code  1S52,  p.  379. 

2  Ky.  Stat.  p.  503,  Act  of  1842. 

3  Revised  Stat,  of  Missouri,  p.  021,  1S45.  See  Rector  v. 
Chevalier,  1  Mis.  345.     Pilkington  v.  Trig--.  2s  Mis.  95. 

*  Stat,  of  Wisconsin,  p.  271.  Swain  v.  Ro}rs,  4  Wis.  ].'  i. 
Hong.  v.  Dawson,  9  Wis.  246. 

5  Revised  Stat,  of  Ark.  p.  658.     Cox  v.  Grace,  5  Eng. 

6  Act   15  Jan.  1846,  Tenn.  Rev.  Stat.,  Part  3,  Tit.  4,  ch.  5. 

7  Michigan  Stat.,  lit.  Rep. 

8  Daggett  v.  Robbins,  2  Blackf.  415.  Chinn  v.  Rnssell, 
lb.  172.  Burr  v.  Martin,  2  Ind.  220.  Gavin  and  Hord's  Stats. 
Vol.  II.  p.  127.  Ed.  1862. 

9  Coit  v.  Waples,  1  Min.  134,  141.  Oleson  v.  Newell,  12 
Min.  186;  Stat.  Min.  p.  512. 

10  Revised  Statutes  Rhode  Maud.  p.  519,  Ed.  1857. 

11  Bruen  v.  Ogden,  6  Halst.  370, 

12  Wright  r.  Armstrong,  Rreose.  130. 

13  Byrd  y.  OTIanlin,  1  Rep.  Con.  Ct.  401. 
11  Vaiden  u.  Dell,  3  Hand.  188. 

15  Hewson  v.  Hunt,  8  Rich.  106. 

16  Watson   v.   Watson,    0  Conn.    140;    but   see  Ornishce    r 
Davis,  16  Conn.  568,  and  Is  11..  555.     Revision  Swift's  Di 
Vol.  I.  p.  532. 


48  REPLEVIN,  ITS    ORIGIN 

bama,1  this  remedy  is  confined  to  distresses  and 
attachments. 

In  Mississippi,2  replevin  lies  only  for  a  distress 
for  rent. 

The  action  of  replevin  is  among  the  oldest  known 
to  the  law.  Glanvil  speaks  of  it  as  well  known 
in  his  time,  and  gives  the  form  of  the  writ.3 
Bracton,  Fleta,  and  Fitzherbert,  treat  of  it  at 
length.  Bracton  says :  "  The  detention  of  a 
!N~ammm  (i.  e.,  the  thing  distrained)  was  a  subject 
belonging  to  the  jurisdiction  of  the  king's  crown  ; 
and  cognizance  thereof  was  rarely  allowed  to  any 
except  the  king  or  his  justices,  but  because  ques- 
tions of  distress  require  despatch,  on  account  of  the 
nature  of  the  subject  taken,  which  was  sometimes 
living  animals,  a  special  jurisdiction  used  to  be 
given  to  the  sheriff,  who  in  this  instance  did  not 
act  in  his  office  as  sheriff,  but  as  justiciarius 
regis."4 

This  special  jurisdiction  was  conferred  upon 
the  sheriff  by  a  justicial  writ  out  of  Chancery,5 

1  Smith  v.  Crockett,  1  Ala.  211. 

2  Wkeelock  v.  Cozzeus,  6  How.  Miss.  279.  Sharkey,  C.  J., 
dissented. 

3  Beame's  Glanv.  294. 

4  Bracton,  155, 156.     2  Reeve's  Hist.  41. 

5  2  Inst.  139.    Hallet  v.  Byrt,  5  Mod.  253.     Gilb.  Repl.  G3. 


AND    HISTORY.  Ill 

giving*  the  sheriff  authority  to  replevy  and  deliver 
the  goods,  and  to  determine  the  poinl  complained 
of  in  the  county.  The  writ  as  to  that  matter  run- 
ning, "and  after  cause  him  (the  defendant  )  to  be 

brought  to  justice  for  the  same,  that  \vc  hear  no 
more  complaints  for  want  of  justice."1 

This  writ,  unlike  other  original  writs,  did  not 
contain  a  summons  to  the  defendant  to  appear  in 
any  of  the  king's  superior  courts  at  Westminster, 
but  left  the  matter  to  be  determined  in  the  county 
court.  This  proceeding  by  original  was  soon  found 
too  tedious  for  the  distant  parts  of  the  kingdom, 
the  office  at  Westminster  being  the  only  one  for 
the  issue  of  writs  in  all  England. 


*a 


To  remedy  this  inconvenience,  the  21st  chapter 
of  the  statute  of  Marlbridge,  52  Henry  3d,  was 
passed,  by  which  it  was  provided,  "  That  if  the 
beasts  of  any  man  be  taken  and  unlawfully  with- 
holden,  the  sheriff,  after  complaint  made  to  him 
thereof,  may  deliver  them  without  let  or  gainsay- 
ing of  him  who  took  the  beasts,  if  they  were  taken 
out  of  liberties,  and  if  the  beasts  were  taken  within 
any  liberties,  and  the  bailiffs  of  the  liberty  will  not 
deliver  them,  then  the  sheriff,  for  default  of  those 

1  Reg.  Brcv.,  Ed.  1G8T,  p.  81. 


50  REPLEVIN,  ITS    ORIGIN" 

bailiffs,  shall  cause  them  to  he  delivered."1     This 
was  called  proceeding  by  plaint. 

Besides  the  inconvenience  as  to  time,  which  was 
felt  by  the  plaintiff  in  the  proceedings  by  writ, 
they  were  liable  to  a  serious  objection  by  the  de- 
fendant, on  the  ground  of  security.  The  writ  of 
replevin  took  the  beasts  from  the  possession  of 
the  defendant,  and  as  the  plaintiff  was  obliged  to 
give  no  other  security  than  the  plegii  de  prose- 
quendo  to  answer  the  amercement  to  the  king,  pro 
falso  clamor  e,  as  in  other  actions,  and  even  these 
having  at  an  early  day  degenerated  into  the  formal 
John  Doe  and  Richard  Roe,  it  might  well  happen 
that  the  plaintiff  had  sold  the  beasts  delivered  to 
him  on  the  replevin,  and  become  insolvent,  by  which 
the  avowant  would  have  no  benefit  from  his  suit. 
To  remedy  this,  the  statute,  Westminster  2d,  Ch. 
2,  13  Edw.  1,  A.  D.  1285,  provided,  "  That  from 
thenceforth,  sheriffs  or  bailiffs  should  not  only  re- 
ceive from  the  plaintiffs  pledges  for  the  pursuing 
of  the  suit,  before  they  made  deliverance  of  the 
distress,  but  also  for  the  return  of  the  beasts,  if 
return  should  be  awarded."  This  act  also  reme- 
died the  evil  of  replevins  in  infinitum,  which  it 
was  held  the  plaintiff  might  have  by  suffering  a 

1  Statutes  at  lar2;e. 


AND   HISTORY.  51 

non-suit,  when  his  case  was  reached  for  trial.  The 
words  of  the  act  being,  "And  forasmuch  as  it  hap- 
peneth  sometimes,  that  after  the  return  of  the  beasts 

is  awarded  unto  the  distrainor,  and  the  party  so  dis- 
trained, after  that  the  beasts  be  returned,  doth  re- 
plevy them  again,  and  when  he  seeth  the  distrainor 
appearing  in  the  court  ready  to  answer  him,  doth 
make  default,  whereby  return  of  the  beasts  ought 
to  be  awarded  again  unto  the  distrainor,  and  so 
the  beasts  be  replevied  twice  or  thrice,  and  infi- 
nitely, and  the  judgments  given  in  the  king's  court 
take  no  effect  in  this  case,  whereupon  no  remedy 
hath  been  yet  provided.  In  this  case,  such  process 
shall  be  awarded,  that  so  soon  as  return  of  the 
beasts  shall  be  awarded  to  the  distrainor,  the  sheriff 
shall  be  commanded  by  a  judicial  writ,  to  make 
return  of  the  beasts  unto  the  distrainor  ;  in  which 
writ  it  shall  be  expressed  that  the  sheriff  shall  not 
deliver  them  without  writ,  making  mention  of  the 
judgment  given  by  the  justices,  which  cannot  be 
without  a  writ  issuing  out  of  the  rolls  of  the  said 
justices,  before  whom  the  matter  was  moved. 
Therefore  when  he  cometh  unto  the  justices,  and 
desireth  replevin  of  the  beasts,  he  shall  have  a 
judicial  writ,  that  the  sheriff  taking  surety  for  the 
suit,  and  also  of  the  beasts  or  cattle  to  be  returned, 
or  the  price  of  them  (if  return  be  awarded),  shall 
deliver  unto  him  the   beasts  or  cattle  before  re- 


52  REPLEVIN",  ITS    ORIGIN 

turned,  and  the  distrainor  shall  be  attached  to  come 
at  a  certain  day  before  the  justices,  afore  whom 
the  plea  was  moved  in  the  presence  of  the  parties. 
And  if  he  that  replevied  make  default  again,  or 
for  another  cause  return  of  the  distress  be  awarded, 
being  now  twice  replevied,  the  distress  shall  re- 
main irrepleviable.  But  if  a  distress  be  taken  of 
new,  and  for  a  new  cause,  the  process  abovesaid 
shall  be  observed  in  the  same  new  distress." 

This  writ  reciting  the  former  judgment,  was 
called  the  writ  of  second  deliverance  j1  and  though 
the  avowant  having  judgment  in  the  second  delive- 
rance, was  entitled  to  a  return  irreplevisable  of  the 
beasts — yet  this  right  was  subject  to  redemption 
of  the  beasts  by  the  tenant  on  payment  of  the  rent, 
as  they  were  still  in  the  nature  of  a  gage  or  pledge. 
Whether  the  replevin  was  by  plaint  or  writ,  the 
sheriff,  before  he  granted  the  one  or  executed  the 
other,  was  required  to  take  from  the  plaintiff  pledges 
de  prosequendo,  and  pledges  de  retorno  habendo.2 
If  the  pledges  introduced  by  Westminster  2,  Ch. 
2,  for  the  security  of  the  avowant,  in  case  he  should 
have  judgment  for  a  return  of  the  beasts  were  in- 
sufficient, the  avowant  had  his  remedy  against  the 
sheriff,  who  was  made  answerable  by  that  statute 

1  Gilb.  Repl.  67. 

2  Gilb.  Repl.  67.    Wilk.  Repl.  10.     Dalt.  Sher.  277,  439. 


AN' I)    HISTORY.  53 

for  their  sufficiency.1  If  the  replevin  was  by  writ, 
and  the  sheriff  executed  it,  he  might  hold  plea 
of  it  in  his  county  court,  hut  either  party  mighl 
remove  it  hy  pone  or  recordari  into  the  courts  above  ; 
the  plaintiff  without  cause,  and  the  defendant  upon 
cause  shown. 

If  the  first  writ  was  not  executed,  the  plaint  ill" 
might  have  an  alias,  and  after  that  a  pluries  reple- 
vin; in  the  pluries  was  always  inserted  the  clause, 
"  or  certify  your  reason  to  us,  why  you  would  or 
could  not  execute  our  commands  heretofore  to  you 
hereupon  directed."  The  same  clause,  at  the  option 
of  the  plaintiff,  might  he  inserted  in  the  alia-,  and 
then  it,  as  well  as  the  pluries,  was  returnable  in 
the  king's  bench  or  common  pleas.  The  pluries 
always,  and  the  alias  whenever  it  had  the  clause, 
vel  causam  nobis  a  rtifices,  in  it,  determined  the 
power  of  the  sheriff  to  hold  plea  of  the  replevin  in 
the  county ;  and  the  reason  is  said  to  be,  that  these 
proceedings  compel  the  sheriff  to  return  the  writ, 
ami  having  parted  with  it,  he  has  no  authority  to 
proceed  further  in  the  court  below.2 

Before  the  proceedings  by  writ  went  into  disuse, 
it  was  usual  for  the  plaintiff  to  take  out  the  reple- 
vin alias   and  pluries   at  the   same  time,   and   he 

1  Gilb.  Repl.  G7.  2  Gilb.  Repl.  7:5. 


54  EEPLEYIX,  ITS   OEIGIX 

might,  if  he  chose,  deliver  the  alias  or  pluries  im- 
mediately to  the  sheriff,  and  thus  take  the  cause 
entirely  from  his  jurisdiction.1  On  the  return  to 
the  pluries  that  the  cattle  were  eloigned,  the 
plaintiff  was  entitled  to  a  precept  in  the  nature  of 
a  writ  of  withernam,  to  take  other  goods  in  lieu  of 
those  formerly  taken  and  eloigned  or  withheld  from 
the  owner ;  or  the  plaintiff  might  proceed  in  the 
cause,  and  recover  damages  to  the  full  amount  of 
the  goods,  as  well  as  for  their  detention.2 

Replevin  by  writ,  we  are  told  by  a  late  writer, 
is  now  quite  obsolete  in  England,  there  being  no 
instance  of  it  since  1743.  It  is  still  in  use  in  Ire- 
land.3 Replevin  by  plaint,  the  only  kind  now 
used  in  England,  was  created  by  the  statute  of 
Marlbridge,  52  Hen.  3d,  Ch.  21.  By  force  of  this 
statute,  the  sheriff  may  hold  plea  in  replevin  of 
any  value,  and  of  all  goods  and  chattels,  notwith- 
standing the  word  "averia"  is  only  used  in  the 
statute.  The  pledges  pro  retorno  habendo  under 
this  statute  may  be  by  the  bond  of  the  plaintiff  in 
replevin,  himself  and  sureties,  or  sureties  only,4 
in  a  sum  proportional  to  the  value  of  the  goods, 

1  Gilb.  Repl.  75.     F.  X.  B.  68.  E. 

2  Wilk.  Repl.  20.  3  Wilk.  on  Repl.  7. 

4  1  Lord   Ray.    279,   and   Bohun   Inst.    Leg.   442.      Wilk. 
Repl.  11. 


AXD   HISTORY. 

with  a  condition  that  the  plaintiff  shall  prosecute 
the  suit  in  replevin,  and  make  return  of  the 
beasts,  if  return  thereof  be  adjudged  by  law.1  The 
sheriff,  after  taking-  the  replevin  bond,  issues  his 
precept  to  his  bailiff  to  replevy  the  goods 
taken.'2  If  the  defendant  claims  property  in  the 
goods  the  sheriff's  power  is  at  an  end.  whether  he 
be  proceeding  by  writ  or  by  plaint.  If  the  proceed- 
ings are  by  plaint,  the  plaintiff  must  purchase  a 
writ  de  proprietate  probanda,  as  no  controversy 
of  property  can  be  determined  in  the  county  court 
without  the  king's  writ. 

On  this  writ  an  inquest  of  office  is  holden,  and 
if  on  such  inquest  the  property  be  found  for  the 
plaintiff,  the  sheriff  is  to  make  deliverance  ;  but  the 
defendant  may  remove  it  byrecordari  facias  loque- 
lam,  and  put  in  his  plea  of  property  in  the  court 
above,  and  it  shall  be  determined  by  a  verdict.  If 
the  inquest  of  office  find  for  the  defendant,  there 
is  an  end  of  the  replevin  by  plaint,  for  the  property 
is  found  for  the  defendant,  and  so  no  deliverance 
can  be  made  by  the  sheriff:  the  plaintiff  may,  how- 
ever, bring  a  new  replevin  by  writ  ;  for  what  is  done 
on  the  plaint  is  no  bar,  nor  has  it  any  concern  ^\  it  1 1 
the  proceedings  upon  the  writ.'' 

1   Evans  '•.  Brander,  2  II.  Black.  ">50. 

■  Wilk.  Repl.  16.  :'  Wilk.  Repl.  IT. 


56  REPLEVIN,   ITS   ORIGIN 

If  the  replevin  were  by  original  writ,  and  the 
defendant  claimed  property,  the  sheriff  could  not 
make  deliverance  any  more  than  he  could  upon 
the  plaint ;  but  it  was  his  duty  to  return  the  claim 
of  property  on  the  causam  nobis  significes  (on  the 
alias  or  pluries  replevin),  as  a  cause  why  he  could 
not  execute  the  writ.  The  plaintiff  might  then 
sue  his  writ  de  proprietate  probanda,  if  he  wanted 
possession  of  his  goods ;  and  if  the  title  was  found 
for  him,  the  sheriff  delivered  the  goods  to  the  plain- 
tiff, and  gave  the  defendant  a  day  in  court ;  and 
the  plaintiff  went  on  to  declare  for  the  unjust  cap- 
tion, and  also  the  subsequent  injustice  of  the  de- 
fendant, in  claiming  the  goods  as  his  own.  The 
return  of  the  inquest  was  no  bar  to  the  defendant, 
but  he  might  still  plead  property,  and  have  it  de- 
termined by  a  verdict,  at  the  peril,  however,  of  an 
attaint.  If  on  the  inquest  of  office  the  property 
was  found  against  the  defendant,  he  was  subject 
to  a  fine  for  his  false  claim,  and  to  damages  to  the 
party  from  whom  he  had  kept  his  goods  in  the 
mean  time.1 

If  the  defendant  claims  property,  the  sheriff 
cannot  proceed  ;2  but  he  returns  that  met  on  his 
writ.  ^Neither  the  defendant  nor  the  sheriff  has 
any  further  control  over  the  cause,  and,  as  a  con- 

1  Gilb.  Repl.  99.  2  Co.  Lit.  145. 


AND   HISTOBT.  •". 

Bequence,  it  is  said,  in  some  places,  thai  the  claim 
of  property  is  a  determination  of  the  snit.1     This, 
however,   is   not   altogether   consistent  with   the 
practice,  .is  slated  by  Chief  Baron  Gilbert,  or  with 
the  form  and  character  of  the  writ  de  proprietate 
probanda.      This  writ,   all   authorities   agree,   can 
only  be  issued  at  the  instance  of  the  plaintiff,  upon 
which  an  inquest  of  office  is  held  by  the  sheriff, 
and  if  they  find  against  the  claim  of  the  defendant, 
then  the  sheriff  is  commanded  at  once  to  make  de- 
liverance to  the  plaintiff,  the  writ  running,  "et  si 
per  inquisitionem  illam  tibi  constare  poterit,  quod 
averia  vel  catalla  pdict  sint  pdict  A,  tunc  ca,  eidem 
A   rcplegiari  facias,  juxta  tenorem    mandatorum 
nostrorum  prius  tibi  ante  directorum."     The  writ 
goes  onto  give  the  defendant  a  day  in  court,  where 
he  may  plead  property  and  have  the  right  settled 
by  a  verdict.     If,  however,  the  inquest  of  office  is 
found  in  favor  of  the  defendant,  then  there  is  an 
end  of  the  suit ;  for  the  sheriff  is  not,  by  the  writ 
de  proprietate  probanda,  to  deliver  the  goods  to 
the  plaintiff,  unless  the  jury  find  them  to  be  the 
plaintiff's,  and  if  the  defendant  has  the  goods,  and 
possesses  them  as  his  own,  they  cannot  proceed  in 
an   action,  which  supposes  the  goods  to  be  re-de- 
livered  to  the  plaintiff. 

1  Gowcn   v.  Ludlow,   Moovc.   403.     Yin.   Ab.  Repl.  F.  5. 
Leslier  v.  Pierson,  11  Wend.  Gl. 


58  REPLEVIN,  ITS    ORIGIN 

Pending  this  proceeding  the  property  remained 
in  the  possession  of  the  defendant,  and  if  removed 
or  secreted  before  the  return  of  the  inquest,  the 
plaintiff  had  no  other  remedy  than  the  capias  in 
withernam,  which,  unless  the  defendant  was  a  man 
of  substance,  was  not  a  very  secure  dependence 
for  the  plaintiff. 

The  practice  in  Pennsylvania  and  some  of  the 
other  States  of  requiring  "  a  claim  property  bond," 
has,  in  this  aspect  of  the  matter,  considerable  ad- 
vantage over  the  old  proceeding,  as  will  be  more 
fully  exhibited  in  the  chapter  on  the  claim  property 
bond. 

In  England,  Wilkinson  tells  us,  all  cases  of  the 
least  importance  are  removed  from  the  inferior  to 
the  superior  courts,  because  the  statute  which 
creates  the  writ  of  second  deliverance,  extends 
only  to  the  superior  courts  of  justice ;  and,  there- 
fore, the  defendant  may,  in  many  eases  in  the  county 
court,  be  subjected  to  a  new  replevin ;  for  as  Chief 
Baron  Gilbert  expresses  it,  "  as  long  as  the  cap- 
tion and  detention  were  not  determined  by  the 
judgment  of  the  court,  so  long  they  allowed  the 
plaintiff,  after  his  own  non-suit,  to- take  a  new  re- 
plevin."1 

1  Gilb.  Kepi.  170. 


AXD   HISTORY.  •>.» 

At  common  law  the  distress  was  merely  a  pled 
to  compel  the  payment  of  certain  dues,  or  the  per- 
formance of  certain  services.     The  distrainor  had 
no  right  to  sell  it  to  satisfy  his  claim.     And  after 
an  action  of  replevin,  the  effect  of  the  judgment 
of  retorno  habendo,  was  merely  to  put  him  in  the 
condition  in  which  he  was  before  the  action  was 
begun.     That  is  to  say,  the  beasts  or  chattels  were 
returned  to  him  merely  as  a  pledge  to  be  retained 
until  the  rent  or  duty  for  which  they  were  taken 
was  paid  or  satisfied.     And  it  was  often  the  case 
that  pending  the  first  writ  of  replevin,  the  dis- 
trainor would  distrain  a  second  time  for  the  same 
rent  or  service,  but  since  he  had  already  security 
to  have   return  upon    making  out   the  justice  of 
his  first   caption,  it  was   highly  reasonable,  that 
pending  that  suit,  the  tenant  should  be  protected 
from  further  distresses,  for  the  same  rent  or  cause, 
for  which  the  first  distress  was  taken.     For  this 
purpose   the  writ  of  re-caption  was   framed;    in 
which,  if  the  defendant  was  convicted,  he  was  lined 
to  the  king ;  because,  by  the  second  caption,  he 
took  upon  him  to  determine  the  justice  and  legality 
of  the  first,  while  that  very  point  was  under  the 
consideration  of  the  court  of  justice  in  which  the 
replevin  depended.     For  if  the  first  distress  were 
lawful,  he  should  have  return  of  it;  and,  therefore, 
the  second   was  unreasonable.     If  the   first  were 


GO  REPLEVIN,  ITS    ORIGIN 

unlawful,  much  more  so  was  the  second  taking  for 
the  same  cause;  so  that  the  re-caption  lay  even 
where  the  cause  of  the  first  caption  was  just.1 

This  writ  issued  only  when  the  second  distress 
was  for  the  same  cause  as  the  first ;  and,  therefore, 
if  A.  distrained  heasts  damage  feasant,  and  pending 
that  suit,  the  same  cattle  or  other  cattle  of  the  same 
proprietors,  trespassed  on  the  soil  of  A.,  A.  might 
distrain  again,  pending  the  first  suit ;  because  each 
distress  was  for  a  distinct  and  several  trespass  or 
injury,  for  which  A.  was  entitled  to  satisfaction.1 
For  the  proceedings  on  this  writ  see  Gilbert,  180, 
&c,  or  "Wilkinson,  132,  &c. 

In  Maine,  Vermont,  Massachusetts,  New  York, 
New  Hampshire,  Ohio,  Delaware,  Kentucky,  Mis- 
souri, "Wisconsin,  Arkansas,  Tennessee,  Michigan, 
Minnesota,  Indiana  and  Rhode  Island,  the  action 
of  replevin  is  regulated  by  statute,  and  is  free 
from  much  of  the  complication  exhibited  in  the 
preceding  pages. 

•  In  Pennsylvania  all  replevins  are  by  force  of  the 
act  of  assembly  of  1705,  and  are  by  writ  returnable 
in  the  court  of  common  pleas  of  the  respective 
counties,  there  to  be  determined  according  to  law.2 

1  Gilb.  Repl.  180, 181.    F.  X.  13.  71.  2  1  Sm.Laws,  44. 


AXD   HISTORY.  61 

The  action  is  begun  by  a  precept  from  the  plain- 
tiff or  his  attorney  to  the  prothonotary  of  the  court , 
requiring  him  to  issue  the  writ  for  certain  enume- 
rated articles.  The  person  in  possession  of  tin- 
articles  is  made  defendant.1  The  writ  is  ad- 
dressed to  the  sheriff  of  the  proper  county,  and 
commands  him,  if  the  plaintiff  make  him  secure  of 
prosecuting  his  claim  against  the  defendant,  to  de- 
liver to  the  plaintiff  certain  articles  enumerated, 
of  a  certain  value,  his  property,  and  to  summon 
the  defendant  to  appear  at  a  certain  day.2 

Great  changes,  it  will  be  perceived,  were  effected 
by  the  act  of  1705,  both  in  the  form  and  character 
of  the  remedy.  It  does  not  recognize  the  replevin 
by  plaint,  and  makes  the  replevin  in  all  cases  a 
returnable  writ,  to  which  the  appearance  of  the 
defendant  is  required  as  in  other  actions.  The 
action  is  not  altogether  an  action  in  rem,  for  a 
summons  to  the  defendant  is  always  inserted,  and 
a  precise  day  given  for  his  appearance  in  the  court 
of  common  pleas,  where  writs  of  replevin  are  re- 
quired to  be  determined.3  If  the  officer  is  pre- 
vented from  delivering  the  goods  by  the  conduct 

1  English  v.  Dalbrow,  1  Miles,  1G0. 

2  See  form  of  Precipe  in  Appendix. 

3  Weaver  u.  Lawrence,  1  Dall.  157. 


62  REPLEVIN",   ITS    ORIGIN 

of  the  defendant,  from  his  having  eloigned  or  other- 
wise disposed  of  them,  the  plaintiff  may  go  on 
and  recover  against  him  in  damages.1  The  pro- 
ceeding by  withernam  appears  never  to  have  been 
resorted  to,  and  it  would  seem  that  there  never 
was  much  advantage  from  it,  as  a  plea  of  non  cepit 
or  property  would  at  once  supersede  it.2  The 
writ  is  not  liable  to  be  defeated  on  a  claim  of 
property,  but  goes  on  to  its  regular  termination, 
as  in  other  cases.  Instead  of  the  claim  of  property 
arresting  the  proceedings,  and  throwing  on  the 
plaintiff  the  burden  of  the  writ  de  proprietate  pro- 
banda, the  defendant  on  claim  of  property  is 
allowed  to  retain  the  goods,  only  on  giving  bond 
to  the  sheriff  to  abide  the  judgment  of  the  court, 
if  on  the  trial  the  property  should  not  be  found  in 
him. 

If  he  fail  to  give  bond,  the  property  is  delivered 
to  the  plaintiff.  In  this  respect,  the  law  of  Penn- 
sylvania is  not  as  liberal  to  the  defendant  as  the 
common  law,  which  left  the  goods  in  his  possession 
on  claim  of  property,  until  the  plaintiff  by  pro- 
ceedings  on   the   writ    de    proprietate    probanda 

1  Bower  v.  Tallman,  5  W.  &  S.  561.  Baldwin  v.  Cash, 
7  W.  &  S.  426. 

2  Gilb.  Repl.  93,  94.  Moore  v.  Watts,  1  Lord  Bay.  614. 
Delabastieh  v.  Beynell,  Carth.  287. 


AND    HISTORY.  63 

established  the  falsity  of  the  claim.  A.s,  however, 
the  goods  were  left  in  the  possession  of  the  defend- 
ant without  security,  and  he  might  dispose  of  or 
consume  them  at  his  pleasure,  reparation  forwhich 
would  depend  upon  his  possession  of  property, 
justice  is  more  likely  to  be  done,  by  the  presenl 
mode  of  proceeding. 

Neither  the  writ  of  recaption,  nor  the  writ  of 
second  deliverance,  is  known  in  Pennsylvania 
practice. 

A  second  replevin,  and  probably  an  action  of 
trespass,  would  seem  to  be  the  only  remedies  for 
the  oppressive  conduct  which  the  writ  of  recaption 
was  designed  to  meet,  While  the  liability  of  the 
sureties  in  the  replevin  bond,  and  of  the  sheriff, 
have  hitherto  been  found  a  sufficient  protection 
against  the  abuse,  which  gave  rise  to  the  writ  of 
second  deliverance. 

Where  the  statute  of  Edward  First,  or  a  similar 
act,  is  not  in  force,  there  does  not  appear  to  be  an\  - 
thing  to  prevent  a  second  action  of  replevin  after 
a  non-suit,1 

The  revised  statutes  of  ISTew  York  prohibited 
the  action  under  such  circumstances,  and  also  took 

1  Daggett  i\  Robins,  2  Blackf.  415. 


64  REPLEVIN,   ITS    ORIGIN 

away  the  writ  of  second  deliverance,  and  all  writs 
of  withernam.  The  code  of  procedure  has  abolished 
the  writ  of  replevin,  as  well  as  all  other  writs,  and 
established  a  new  method  by  which  the  same  end 
is  to  be  obtained.     It  will  be  found  in  the  appendix. 

In  England  it  appears  that  notwithstanding  the 
2  "W*.  and  M.,  Ch.  5,  the  distress  may  still,  at  the 
landlord's  option,  be  retained  as  a  pledge,  the 
provisions  in  that  act  for  a  sale  not  being  impera- 
tive.1 

In  Pennsylvania  a  different  construction  has 
been  put  upon  the  similar  act  of  the  21st  of  March, 
1772,  which,  among  other  things,  enacts,  that  where 
the  tenant  or  owner  of  goods  distrained  for  rent, 
shall  not,  within  five  days  next  after  such  distress 
taken,  and  notice  thereof,  replevy  the  same,  then 
the  person  distraining,  shall  and  may,  with  the 
sheriff,  under-sheriff,  or  any  constable,  <fcc,  cause 
the  goods  to  be  appraised  by  two  respectable  free- 
holders; and  after  such  appraisement,  shall  or  may, 
after  six  days'  public  notice,  lawfully  sell  the  goods 
for  the  best  price  that  can  be  gotten  for  the  same, 
for  and  towards  satisfaction  of  the  rent  and  charges 

1  Hudd  v.  Ravenor,  2  B.  &  B.  662.  Lear  v.  Edmonds,  1 
B.  &  Aid.  157.     Lingham  v.  Warren,  2  B.  &  B.  36. 


AM)    BISTORT.  <i.~ 

incurred,  leaving  the  overplus,  if  any,  in  the  hands 
of  the  sheriff,  under-sheriff,  or  constable,  for  the 
owner's  use. 

Judge  Kennedy,  in  delivering  the  opinion  of  the 
court  in  Quin  v.  Wallace'  after  citing  numerous 
authorities  to  the  point,  that  the  word  "may," 
when  used  in  a  statute,  where  the  public  interests 
and  rights  are  concerned,  is  equivalent  to  must, 
and  imperative — proceeds  at  some  length  in  sup- 
port of  the  position  that  the  words  of  the  act  of 
21st  March,  1772,  are  imperative  for  a  sale,  and 
concludes  as  follows :  "It  must  be  admitted,  how- 
ever, that  Chief  Justice  Dallas  and  Mr.  Justice 
Bayley  have  expressed  opinions  in  opposition  to 
this.  In  Hudd  v.  Eavenor,  2  B.  &  B.  662,  <i  Eng. 
C.  L.  R.  306,  where  it  wTas  ruled  that  a  plea  of  a 
former  distress  for  the  same  rent  was  not  good, 
because  it  was  not  alleged  that  the  rent  was  satis- 
fied, Dallas,  C.  J.,  in  delivering  his  opinion  as  to 
the  plea,  seems  to  have  thought  that  unless  the 
words  shall  and  may,  used  in  the  statute  3  ~W.  and 
M.  scss.  1,  ch.  r>,  s.  2,  from  which  the  section  of 
our  act  under  consideration  is  merely  a  copy,  would 
be  construed  as  giving  only  a  discretionary  power 
to  the  landlord  to  sell,  the  plea  might   have  been 

1  G  Whart.  4:.i>. 


66  REPLEVIN,  ITS    ORIGIN" 

considered  good.     The  main,  and  indeed  only,  ob- 
jection mentioned  by  him,  to  its  being  considered 
compulsory  on  the  landlord,  is,  that  after  a  seizure 
he  could  never  come  to  any  terms   of  agreement 
with  his  tenant.     But  surely  this  is  a  great  mis- 
take, because  the  parties,  by  their  agreement,  may 
make  the  law  what  they  please  in  this  respect. 
And  Mr.  Justice  Richardson  seems  to  have  thought 
so,  when  he  said  in  the  same  case,  '  I  am  not  satis- 
fied that  the  statute  of  W.  and  M.  is  imperative  as 
to   the   sale;   but   suppose   it  is  so,  that    statute 
never  meant  to  preclude  the  parties  from  ending 
the  procedings.'     And  Mr.  Justice  Bayley,  in  Lear 
v.  Edmonds,  1  B.  &  Aid.  157,  where  a  similar  plea 
was  put  in  by  the  defendant,  and  considered  not 
good,  because  the  statute  of  W.  and  M.,  as  he  says, 
is  that  the  party  distraining  may  sell  the  goods, 
not  that  he  must  sell ;  and  if  so,  then  he  asks,  does 
not  the  landlord  stand  as  he  did  at  common  law 
before  the  statute  ?  for  it  is  not  averred  that  the 
o-oods  were  sold.     It  is  sufficient  answer  to  Mr. 
Justice  Bayley,  that  he  does  not  quote  the  words 
of  the  statute  correctly;  for  he  has  omitted  the 
word  sliall,  as  if  it  were  of  no  import  or  force  what- 
ever.    These  opinions   as  to  the  construction  of 
the  statute  W.  and  M.,  though  coming  from  very 
highly  respectable  judges,  would  appear  to  have 
been  advanced  without  much  consideration,  with- 


AXD    HISTORY.  0? 

out  any  satisfactory  course  of  reasoning  to  support 
them,  and  in  direct  opposition  to  the  principle  laid 
down  and  established  in  the  king's  bench,  in  jas- 
per v.  "Edwards.1  They  therefore  can  have  no 
influence  upon  our  judgment  in  giving  to  our  act, 
in  relation  to  the  same  matter,  a  different  construc- 
tion, when  its  various  provisions,  as  avcII  as  the 
language  employed,  would  seem  to  require  it. 
Considering,  then,  as  Ave  do,  our  act  as  to  the  sale 
of  the  goods,  to  be  imperative  on  the  landlord,  it 
would  seem,  therefore,  to  give  to  the  distress  the 
character  of  an  execution." 

In  New  York,  after  the  distress  has  been  duly 
made,  if  the  goods  be  not  replevied  within  five  days 
after  notice,  the  revised  statutes  provide,  that  the 
goods  shall  be  forthwith  appraised  and  sold  at 
public  vendue,  under  the  superintendence  of  a 
sheriff  or  constable,  towards  satisfaction  of  rent.2 

1  1  Lord  Ray.  719.     12  Mod.  G58. 

2  3  Kent  480.     2  Rev.  Stat.  N.  Y.  504. 


CHAPTER   II. 

FOR  WHAT  REPLEVIN  WILL  LIE. 

Replevin  lies  for  all  goods  and  chattels  unlaw- 
fully taken  or  detained,  and  may  be  brought  when- 
ever one  person  claims  personal  property  in  the  pos- 
session of  another,1  and  this  whether  the  claimant 
has  ever  had  possession  or  not,2  and  whether  his 
property  in  the  goods  be  absolute  or  qualified,3 
provided   he  has  the   right   to   possession.4     One 

1  Weaver  v.  Lawrence,  1  Dall.  157  Snyder  v.  Vaux,  2  R. 
428.  Shearick  v.  Huber,  6  Binn.  3.  Stonghton  v.  Rappalo,  3 
S.  &  R.  562.  Pearce  v.  Humphreys,  14  S.  &  R.  25.  Bower  v. 
Tallinan,  5  W.  &  S.  561.  Boughton  v.  Bruce,  20  Wend.  234. 
Roberts  v.  The  Dauphin  Bank,  7  Harris  71.  Young  v.  Kim- 
ball, 11  Harris  193.     Trapnall  v.  Hnttier,  1  Eng.  18. 

2  Woods  v.  Nixon,  Addison  134.  Harlan  v.  Harlan,  3 
Harris  507.  Sayward  v.  Warren,  27  Maine  453.  Beebe  v.  Du 
Baun,  3  Eng.  510.     Osgood  v.  Green,  10  Foster  (N.  H.)  210. 

3  Whetwell  v.  Wells,  24  Pick.  25.  Gordon  v.  Harper,  7 
T.  R.  9.  Johnson  v.  Hunt,  11  Wend.  137.  Rogers  v.  Arnold, 
12  Wend.  30.  Hunt  v.  Chambers,  6  Penn.  Law  Jour.  82.  Smith 
v.  Williamson,  1  Har.  &  J.  147.  Mildrum  v.  Snow,  9  Pick. 
441.     Seibert  v.  M'Henry,  6  W.  303. 

4  Gilb.  Repl.  119.  Co.  Lit.  145,  b.  Winch.  26.  Haythorn 
v.  Rushford,  4  Harr.  R.  160.     Harris  v.  Smith,  3   S.  &  R.  20. 


FOR   WHAT    REPLEVIN    WILL    LIE.  69 

who  has  the  mere  charge  or  custody  of  goods  can- 
not maintain  replevin.1 

In  M;n  viand  this  writ  is  used  to  recover  the 
custody  of  an  apprentice  taken  or  detained  against 
the  will  or  consent  of  the  master.'2 

Every  possible  facility  appears,  from  the  first,  to 
have  hem  -i\en  to  the  use  of  this  action  in  Penn- 
sylvania.  So  much  so,  that  at  the  date  of  the 
earliest  reports  in  that  state,  the  practice  of 
using  it,  in  all  cases  where  personal  property  was 
claimed,  was  so  fully  recognized  and  established, 
that  it  seems  not  to  have  been  thought  necessary 
to  inquire  exactly  into  the  extent  of  the  English 
law  on  the  subject.3  By  the  act  of  1705,  the 
power  to  grant  writs  of  replevin  is  conferred  in 

Wheeler  u.  Train,  3  Pick.  255,  4  Pick.  168.  Collins  v.  Evans. 
15  Pick.63.  Mead  u.  Kilday,2  Watts  110.  Lester  w.  McDowell, 
6  Harris  91.  Lee  v.  Gould,  11  Wright  398.  Hunt  v.  Cham- 
bers, I  New  Jersey  620.  Bradley  v.  Michael,  1  Smith  :;!•'.. 
Furguson  v.  Thomas,  26  Maine  499.  Pierce  v.  Stephens,  30 
Maine  184.     Partridge  v.  Swaby,  46  Maine  184. 

1  Harris  r.  Smith,  3  S.  &.  R.  20. 

2  1  Md.  Code,  Art.  5,  sect.  9. 

3  "Weaver  v. 'Lawrence,  1  Pall.  157.  Snyder  v.  Vans,  2 
R.42S.  Shearick  v.  Huber,  6  Binn.  3.  Stoughton  u.  Rappalo, 
3  S.  &  R.  562.  Pearce  u.  Humphreys,  14  S.  &  R.  25.  Bower 
r.  Tallman,  5  W.  &  S.  561.    Boughton  v.  Bruce,  20  Wend.  234. 


70  FOR   WHAT   REPLEVIN    WILL    LIE. 

cases  "where  replevins  may  be  granted  by  the 
laws  of  England."  So  firmly  was  the  practice 
rooted,  however,  that  to  the  attempts  to  show  that 
in  England  replevin  was  confined  to  cases  of  un- 
lawful taking,  the  judges  of  Pennsylvania  satisfied 
themselves  with  saying,  that,  however  it  might  be 
in  England,  it  was  well  settled  that  in  Pennsyl- 
vania the  action  lay  in  all  cases  where  one  man 
claimed  personal  property  in  the  possession  of 
another.1 

1  That  this  was  the  opinion  with  regard  to  the  writ  at  a  very 
early  date  in  Pennsylvania  appears  by  the  following  extract 
from  the  Minutes  of  Provincial  Council,  vol.  1,  page  441,  under 
date  Sept.  24th,  1698.  The  lieut.-governor  laid  before  coun- 
cil a  case  in  which  Anthony  Morris,  as  judge  of  the  court  of 
common  pleas,  had  granted  a  replevin  for  goods  seized  by  the 
king's  collectors  for  having  been  imported  contrary  to  law. 
The  council  reproved  the  justices,  who  presented  the  following 
justification  : — 

May  it  please  the  governor  and  council,  we,  the  justices  of 
the  county  court  of  Philadelphia,  understanding  that  some 
complaints  have  been  made  to  you  against  our  proceedings 
in  a  replevin  lately  granted  by  one  of  us  to  John  Adams, 
merchant,  returnable  to  our  last  court,  do  humbly  offer  this 
following  answer  for  our  vindication — 

First.  That  we  look  upon  a  replevin  to  be  the  right  of  the 
king's  subjects  to  have  and  our  duties  to  grant,  where  any 
goods  or  cattle  are  taken  or  distrained. 

Secondly.  That  such  writs  have  been  granted  by  the  justices, 
and  no  other  in  this  government,  the  parties  giving  bond  with 


FOR   WHAT    REPLEVIN     WILL    LIE.  71 

In  Xew  York  and  Massachusetts  the  question, 
whether  the  unlawful  detention  of  personal  pro- 
perty, which  had  come  lawfully  to  the  possession 
of  the  defendant,  could  be  remedied  by  replevin, 
seems  to  have  presented  itself  unembarrassed  by 
any  settled  practice  on  the  subject.  This  led  to  a 
thorough  investigation  of  the  English  doctrine; 
and  the  learned  judges  of  these  two  states  came  to 
directly  opposite  conclusions.     "While  New  York 

sureties,  to  the  sheriff  for  redeliverance  of  such  goods  in  case 
the  plaintiff  in  the  replevin  be  cast,  according  as  is  usual  in 
England  in  such  cases. 

Thirdly.  That  since  we  understood  how  the  goods  in  ques- 
tion were  seized  and  secured  in  the  king's  store-house,  we 
might  have  just  grounds  to  conceive  that  the  sheriff  might  be 
as  proper  to  secure  the  same  to  be  forthcoming  in  specie,  as 
by  the  replevin  he  is  commanded,  as  that  they  should  remain 
in  the  hands  of  Robert  Webb,  who  is  no  proper  officer  as  we 
know  6f  to  keep  the  same,  nor  hath  given  any  security  or 
caution  to  this  government  to  answer  the  king  and  his  people 
in  that  respect,  as  we  can  understand. 

Lastly.  That  we  at  our  last  court  finding  this  matter  to  be 
weighty,  though  we  did  not  know  of  any  court  of  admiralty 
erected,  nor  persons  qualified  as  we  know  of  to  this  day  to 
hold  such  court,  3ret  we  forbore  the  trial  of  the  said  replevin, 
and  continued  it  until  we  further  advised,  and  so  the  parties 
are  to  come  before  us  again  at  next  court,  when  we  should  be 
glad  to  receive  some  advice  herein  from  you;  and  rest  your 
loving  friends,  Anthony  Morris,  Samuel  Richardson,  .lames 
Fox.     Philadelphia,  27th  Tth  month,  .1698. 


72  FOR   WHAT   REPLEVIN   WILL    LIE. 

held  that  the  action  lay  only  for  goods  unlawfully 
taken  and  detained,1  Massachusetts  argued  that 
even  at  common  law  replevin  was  the  proper 
remedy  for  goods  unlawfully  detained,  without 
reference  to  the  mode  by  which  the  possession  of 
the  defendant  had  been  acquired.2  New  York 
is  supported  by  a  goodly  array  of  English  authori- 
ties.3 The  able  argument  of  the  court  of  Massa- 
chusetts, upon  the  reason  of  the  question,  is  forti- 
fied by  many  examples  from  the  English  books  in 
support  of  their  position.  The  well-known  case  of 
replevin,  after  tender  of  amends,  for  cattle  taken 
damage  feasant,  when  the  original  taking  was  law- 
ful, but  the  detention  became  unlawful  by  reason 
of  the  tender.  And  the  case  in  Siderfin,4  of  the 
colt  foaled  in  the  pound,  which  was  never  taken 
by  the  defendant,  and  yet  was  unlawfully  detained ; 

1  Pangburn  v.  Patriclge,  7  Johns.  140.  Barrett  v.  Warren, 
3  Hill  348.   But  see  Zachrisson  v.  Alman,  2  Sand.  Sup.  C.  R.  68. 

2  llsley  v.  Stubbs,  5  Mass.  284.  Badger  v.  Phinney,  15 
Mass.  359.  Baker  v.  Fales,  16  Mass.  147.  Marston  v.  Baldwin, 
17  Mass.  606. 

3  3  Steph.  Com.  524.  Ex  Parte  Chamberlain,  1  Schoales 
&  Lefroy's  Rep.  320.  Shannon  v.  Shannon,  lb.  324,  per  Ld. 
Redesdale.  Galloway  v.  Bird,  4  Bing.  299.  Gulliver  v.  Co- 
sens,  1  Mann.  Grang.  &  Scott  788.  George  v.  Chambers,  11 
M.  &  W.  149.    And  see  Meany  v.  Head,  1  Mason's  C.  C.  R.  319. 

*  Arundel  v.  Trevill,  Sid.  81,  82.     Gilb.  Repl.  131. 


FOR    WHAT   REPLEVIN     WILL    LIE.  ~o 

also  the  cause  in  Lilly's  entries,1  where  the  de- 
fendant avowed  that  he  had  rescued  the  goods  from 
the  sea,  and  claimed  salvage;  and  the  very  late- 
case  of  replevin  for  taking  and  impounding,  in 
which  though  a  tender  after  the  taking  and  before 
impounding  was  pleaded  and  demurred  to  because 
the  lawfulness  of  the  original  taking  was  not  dis- 
puted, Lord  Denman  held  the  plea  good,  and  said 
every  unlawful  detention  was  a  new  taking,2  afford 
some  evidence  that  the  action  was  not  originally 
confined  to  cases  of  an  unlawful  taking,  or  of  any 
taking  from  the  possession  of  the  plaintiff. 

Judge  Putnam  argues  as  follows:  "It  is  said 
that  in  the  case  put  in  Fitz.  X.  B.  GO,  '  That  if  a 
man  take  cattle  damage  feasant,  and  the  other 
tender  sufficient  amends,  and  he  refuses  to  deliver 
them  back;  if  he  sue  replevin,  he  shall  recover 
damages  only  for  the  detention,  and  not  for  the 
taking,  for  that  was  lawful ;'  the  defendant  became 
a  trespasser  ab  initio,  because  he  abused  a  license 
of  the  law  ;  and  so  the  original  taking  was  to  be 
considered  as  tortious  :  and  thus  this  case  is  to  be 
reconciled  to  the  general  doctrine  requiring  a  tor- 
tious taking  to  enable  the  plaintiff  to  maintain  re- 
plevin. 

1  Jacoltsen  u.  Lee,  Lilly's  Entries  349. 
J  Evans  u.  Elliott,  5  Adol.  &  Ellis  142. 


74  FOR   WHAT    REPLEVIN    WILL    LIE. 

"  But  the  writers  who  mention  this  case  speak  of 
it  as  one  where  replevin  will  lie ;  and  where  damages 
are  recovered  for  the  unjust  detention,  and  not  for 
the  unjust  taking ;  which  certainly  would  be  the 
rule,  if  the  defendant  was  to  be  considered  as  a 
trespasser  ab  initio.  Now  I  do  not  perceive  how 
the  distinction  between  the  abuse  of  the  license  of 
the  law,  and  the  license  of  the  party  will  be  very 
material.  The  rule  is  very  well  stated  in  12  Ed  w. 
4,  8,  pi.  20 :  '  Where  a  man  does  a  thing  by  the 
authority  of  the  law,  and  afterwards  misdemeans 
himself,  his  first  act  shall  be  tortious.'  In  a  subse- 
quent case,  21  Edw.  4,  19,  Pigot  (who  was  a  coun- 
sellor) contended  that  there  was  no  difference 
between  the  license  of  the  law  and  of  the  party ; 
but  the  court  adhered  to  it. 

"  To  apply  the  rule  to  the  case  at  bar :  the  goods 
came  to  the  defendant's  hands  by  the  license  of 
the  law,  or  of  the  party.  Suppose  by  the  license 
of  the  law;  then  if,  by  detaining  them  unjustly,  he 
becomes  a  trespasser  ab  initio,  the  plaintiff  is  to 
maintain  his  replevin  on  the  ground  of  an  original 
tortious  taking.  But  suppose  they  came  to  the 
hands  of  the  defendant  by  the  license  of  the  party, 
then  he  is  to  be  punished  only  so  far  as  he  abused 
the  authority.  From  that  time  only  he  becomes  a 
trespasser,  not  from  the  beginning ;  but  as  Lord 


FOB    WHAT    REPLEVIN    WILL    LIE.  <•> 

Coke  expresses  it  in  the  six  carpenters' case, 'he 
shall  be  punished  for  his  abuse  of  it.'  Tin-  dis- 
tinction, therefore,  goes  only  to  the  damages  to  be 

recovered." 

To  which  it  may  he  added,  that  in  the  case  put 
in  Fitzherbert,  the  distrainor  would  not,  according 
to  the  resolves  in  the  six  carpenters'  case,  be  a 
trespasser  ab  initio.  It  was  resolved  per  totam 
curiam,1  that  not  doing  cannot  make  the  party, 
who  lias  authority  or  license  by  the  law,  a  trespasser 
ab  initio,  because  not  doing  is  no  trespass,  and 
therefore  if  the  lessor  distrains  for  his  rent,  and 
thereupon  the  lessee  tenders  him  the  renl  and 
arrears,  &c.,  and  requires  his  beasts  again,  and  he 
will  not  deliver  them,  this  not  doing  cannot  make 
him  a  trespasser  ab  initio.  The  same  doctrine  has 
been  repeatedly  recognized  since.2 

According  to  Bracton,  "The  questions  arising 

on  the  detention  of  a  Xamium,  related  either  to  the 
caption  or  detention  against  gage  and  pledge.  The 
caption  might  be  just  or  unjust.  It  was  just  when 
taken  for  a  service  detained  by  a  person  who  ac- 

1  8  Co.  290. 

2  Gates  v.  Lownsbury,  20  Johns.  427.  Halo  v.  Clark.  19 
Wend.  408.    Bell  v.  North,  Littell's  Rep.  133.     Waterbury  v. 

Lockwood,  4  Day  25 T. 


76  FOR    WHAT    REPLEVIN   WILL    LIE. 

knowledge  the  service  to  be  due,  and  in  that  case 
the  taker  might  avow  the  taking ;  but  if  the  things 
justly  so  taken  were  detained  against  gage  and 
pledge,  after  security  was  offered  for  payment  for 
the  service,  and  all  arrears,  then  though  the  cap- 
tion might  be  just,  the  detention  was  unjust."1 
And  if  the  lord  defended  the  unjust  detention,  the 
sheriff  went  on  to  hear  and  determine  it. 

In  the  case  of  Galloway  v.  Bird,2  which  was 
replevin  for  goods  detained  by  a  carrier,  C.  J.  Best 
seems  to  narrow  the  exception,  and  says,  "  The 
authorities  all  lay  it  down  that  replevin  can  only 
be  maintained  where  goods  are  taken,  not  where 
they  are  delivered  ivpon  a  contract."  But  even 
this  will  hardly  stand  with  Lord  Denman's  ruling, 
that  every  unlawful  detention  is  a  taking,3  suffi- 
cient to  support  the  averment  in  the  narr.,  and  this 
was  the  opinion  of  the  supreme  court  of  Pennsyl- 
vania in  Mackinley  v.  M'Gregor.4 

This  whole  question  has  been  gone  over  by  Mr. 
Justice  Coleridge  in  the  case  of  Mennie  v.  Blake, 
6  Ellis  and  Black  843,  and  the  conclusion  reached 

1  Bracton  156,  2  Reeves'  Hist.  47. 

2  4  Bing.  299. 

3  Evans  v.  Elliott,  5  Adol.  &  Ellis  142. 

4  3  Whart.  369. 


FOR   WHAT   REPLEVIN    WILL    LIE.  77 

that  there  must  he  a  tortious  taking  to  support  re- 
plevin. In  Delaware  there  must  he  a  tortious 
taking.1        £ 

The  question  in  both  New  York  and  Massachu- 
setts was  afterwards  settled  by  statute.  The  re- 
vised statutes  in  each  giving  the  remedy  in  cases 
of  unlawful  detention  without  reference  to  the 
mode  by  which  the  possession  was  acquired. 

•  The  courts  of  New  York,  however,  carried  their 
original  view  of  the  law  to  the  construction  of  the 
statute,2  and  determined  that  there  were  two  writs  of 
replevin  in  that  state  :  one  in  the  cepit,  which  is  the 
old  action  of  replevin,  and  lies  exclusively  in  cases 
where  the  taking  has  been  unlawful ;  the  other,  in 
the  detinet,  to  be  used  where  the  detention  only  is 
unlawful,  and  which  takes  the  place  of  the  old 
action  of  detinue.  This  division  rests  upon  a  dis- 
tinction not  recognized,  except  in  New  York,  and 
has  there  been  abolished  by  the  code  of  proce- 
dure.3 

If  possession  has  been  obtained  by  delivery  or 
otherwise,  lawfully,  it  has  been  held  that  a  demand 

1  Drummond  r.  Hopper,  4  Harrington  327. 

2  Barrett  v.  Warren,  3  Hill  34S. 

5  Zachrisson  i\  Alnnan,  2  Sandf.  Sup.  Ct.  G8. 

G 


78  FOR   WHAT   REPLEVIN   WILL    LIE. 

and  refusal  are  necessary  before  bringing  the 
action,1  but  that  they  need  not  be  proved,  if  the 
defendant  pleads  property.  The  fact  of  demand 
and  refusal  need  not  be  alleged  in  the  declaration, 
but  is  matter  of  proof  on  the  issue  of  non  cepit,  and 
is  implied  in  the  allegation  that  defendant  took 
and  unjustly  detained  the  property.2  But  where 
the  owner  of  a  horse  bailed  him  to  A.  for  use  for  a 
limited  period,  under  expectation  of  purchase  by 
the  latter,  and  A.,  for  a  valuable  consideration,  and 
without  notice,  sold  the  horse  to  B.,  and  he  to  the 
defendant,  it  was  held  that  no  previous  demand 
was  necessary  to  enable  the  owner  to  maintain  re- 
plevin against  the  last  purchaser.3 

]STemo  plus  juris  in  alium  transferre  potest  quam 
ipse  habet,  is  the  maxim  of  the  common  law.  In 
England,  if  a  man  buy  goods  or  take  them  on  pledge, 
and  they  turn  out  to  be  the  property  of  another, 
the  owner  has  a  right  to  take  them  out  of  the  hands 
of  the  purchaser,  unless  they  have  been  sold  in 
■> 

1  Seaver  v.  Dingley,  4  Green  306.  Barret  v.  Warren,  3  Hill 
348.  Page  v.  Crosby,  24  Pick.  211.  Boughton  v.  Bruce,  20 
Wend.  234.  Ingalls  v.  Buckley,  13  111.  315.  Lewis  v.  Master, 
8  Blackf.  244.     Underwood  v.  Tatham,  1  Cart.  226. 

2  Seaver  v.  Dingley,  4  wreen  306.  Gargrave  v.  Smith,  1  Salk. 
221.     B.  N.  P.  81.     Sir  R.  Bovey's  case,  1  Yent.  211. 

3  Galvin  v.  Bacon,  2  Fairf.  28.  McNeil  v.  Arnold,  11  Ark. 
155.  oy.  »J 

\jLA*<r^     tan       iTa^,^      tt     a^crttZ^     «.     cj  > '    •  ;  '  *     A"-<- 


FOR   WHAT   REPLEVIN   WILL    LIE.  79 

market  overt.  "With  that  exception,  it  is  incum- 
bent on  the  vendee  to  see  that  the  vendor  has  a 
good  title.1  Thus,  if  goods  be  let  on  hire,  although 
the  person  who  hires  them  has  the  possession  of 
them,  for  the  special  purpose  for  which  they  were 
lent,  yet  if  he  send  them  to  an  auctioneer  to  he 
sold,,  he  is  guilty  of  a  conversion  of  the  goods  ;  and 
if  the  auctioneer  afterwards  refuse  to  deliver  them 
to  the  owner,  unless  he  will  pay  a  sum  of  money 
which  the  auctioneer  claims,  he  is  guilty  of  a  con- 
version.2 And  when  goods  are  obtained  on  false 
pretences,  and  with  a  preconceived  design  not  to 
pay  for  them,  it  is  a  fraud,  and  the  property  is  not 
changed.3 

The  true  owner  of  goods  which  have  been  stolen 
or  found,  or  bought  from  one  not  having  authority 
to  sell,  or  obtained  by  false  pretences  and  fraud, 
with  the  exceptions  hereinafter  stated,  may  re- 
cover them  by  replevin  wherever  he  finds  them,  and 

1  Hill  v.  Porrott,  3  Taunt.  2T4.  Bradbun'  r.  Anderton,  1 
Cromp.  Mecs.  &  Rose.  490.  Metcalf  u.  Lumsden,  1  Car.  &  K. 
309.     Peer  w.  Humphrey,  2  Adol.  &  Ellis  495. 

2  Loeschman  v.  Machin,  2  Starkie  276. 

3  Karl  of  Bristol  v.  Wilsmore,  1  Ham.  &  Cress."521.  Poor  r. 
Humphrey,  2  Adol.  &  Ellis  495.  Abbifcu  Barry,  5  Moore  98. 
Kilby  r.  Wilson,  R.  &  M.  178. 


80  FOR   WHAT   REPLEVIN   WILL    LIE. 

it  is  of  no  consequence  that  they  have  been  sold  at 
public  sale.1 

"When  a  wagoner,  by  whom  goods  were  sent  to 
be  delivered  to  A.,  sold  them  openly  in  a  street  of 
a  city  to  B.,  it  was  held  that  the  sale  vested  no 
property  in  the  purchaser.2  And  C.  J.  Tilghman, 
in  delivering  the  opinion  of  the  court,  says:  "This 
is  so  plain  a  case  that  it  is  difficult  to  render  it 
plainer  by  argument.  The  defendant's  right  to  this 
property  (the  action  was  replevin)  is  just  as  good 
as  his  right  would  have  been  to  a  horse  which  he 
had  purchased  from  a  smith  to  whom  he  had  been 
sent  by  the  owner  for  the  purpose  of  being  shod ; 
or  to  a  coat,  which  he  had  purchased  from  a  tailor, 
who  had  received  it  with  orders  to  mend  and  return 
it.  M'Dermott,  who  delivered  the  goods  in  ques- 
tion to  the  wagoner,  was  guilty  of  no  imprudence, 
nor  held  out  any  false  colors  by  which  the  world 
might  be  deceived."  And  Judge  Rogers,  in  a  sub- 
sequent case,3  adopts  the  same  view,  and  in  deliver- 

1  Mackinley  v.  M'Gregor,  3  Wh.  396.  Buffington  et  al.  v. 
Gerrish,  15  Mass.  156.  Mowrey  v.  Walsh,  8  Cow.  238.  Thomp- 
son v.  Rose,  16  Conn.  71.  Porter  v.  Foster,  20  Maine  391. 
Rowley  v.  Bigelow,  12  Pick.  307.  See  Penna.  Act  23  Sept.  1780, 
§  7,  1  Sm.  Laws,  p.  511. 

2  Lecky  v.  M'Dermott,  8  S.  &  R.  500. 

3  Rapp  v.  Palmer,  3  W.  178. 


FOR   WHAT   REPLEVIN   WILL    LIE.  81 

ing  the  opinion  of  the  court  says  :  "  The  rule  of  1  he 
common  law  is  caveat  emptor,  and  unlike  the  civil 
law,  the  possession  of  goods  is  but  prima  facie  evi- 
dence of  title,  with  some  exceptions." 

In  Ohio  it  has  been  decided,  that  if  a  chattel  be 
sold  by  a  borrower  of  it,  the  owner  may  recover  it 
in  an  action  of  replevin  of  whomsoever  he  may 
find  in  possession  of  it.1  The  same  decision  would 
probably  be  made  in  Pennsylvania,  subject,  of 
course,  to  an  inquiry  into  the  bona  fides  of  the 
plaintiff's  conduct. 

When  a  sale  and  delivery,  or  exchange  of  pro- 
perty, has  been  procured  by  false  representations 
amounting  to  fraud,  the  vendor  may  insist  that  no 
title  passed  to  the  vendee,  and  in  such  case  he  may 
maintain  replevin  without  any  previous  demand. 
But  before  he  brings  his  action,  he  must  restore 
or  offer  to  restore  to  the  other  party  the  whole  of 
the  consideration,  whether  money,  goods,  or  secu- 
rity, received  by  way  of  consideration  for  the  sale, 
which  might  be  of  any  value  to  either  party.8  The 
note,  whether  negotiable  or  otherwise,  of  the  fraudu- 

1  Roland  v.  Gundy,  5  Ohio  202. 

2  Frost  v.  Lowry,  15  Ohio  200,  and  f>  Penna.  Law  Jour.  326. 
Thayer  v.  Turner,  8  Met.  550.  Johnson  v.  Teck  1  W.  A  M. 
334.    Pearsall  v.  Chapin,  8  Wr.  12.    Per  Lowrie,  C.  J. 


82  EOR  WHAT   REPLEVIN   WILL    LIE. 

lent  vendee,  not  actually  negotiated,  is  not  such  a 
thing  of  value  as  it  is  necessary  to  return.1 

There  are  no  markets  overt  known  to  our  law 
by  a  sale  in  which  the  rights  of  the  true  owner 
can  be  bound.2  Caveat  emptor  is  the  rule  in  all 
purchases  of  personal  property,  since  no  one  can 
transfer  a  greater  right  therein  than  he  himself 
has. 

So  completely  is  this  doctrine  of  market  overt 
repudiated,  that  replevin  lies  against  the  sheriff's 
vendee  to  recover  the  possession  of  chattels  wrong- 
fully taken  in  execution  and  J  sold.3  To  prevent 
the  delay  of  public  justice,  and  the  unnecessary 
vexation  of  the  officers  charged  with  the  execution 
thereof,  the  right  to  the  writ  is,  in  Pennsylvania, 
taken  away  so  long  as  the  goods  are  in  the  posses- 
sion of  any  sheriff,  naval  officer,  constable,  collector 

1  Thurston  v.  Blanchard,  22  Pick.  18.  Thayer  v.  Turner,  8 
Met.  550.     15  Ohio  200. 

2  Hosack  v.  Weaver,  1  Yeates  478.  Easton  v.  Worthington, 
5  S.  &  R.  130.  2  Yeates  348.  Dame  v.  Baldwin,  8  Mass.  519. 
Towne  v  Collins,  14  Mass.  499.  Wheelwright  v.  Depeyster,  1 
Johns.  4*71.  Roland  v.  Gundy,  5  Ohio  203.  Heacock  v. 
Walker,  1  Tyler  341.  Browning  v.  M'Gill,  2  Har.  &  Johns. 
308.    Act  23d  Sept.  1780,  §  7,  1  Sm.  Laws  p.  511. 

3  Shearick  v.  Huber,  6  Binn.  2.  See  George  v.  Chambers,  11 
M.  &  W.  149. 


FOK   WHAT   REPLEVIN   WILL    LIE.  83 

of  the  public  taxes,  or  other  officer  acting-  under 
the  authority  of  the  state.1  The  service  of  a  fi  ►reign 
attachment  on  a  transporter,  in  whose  hands  the 
goods  are,  does  not  so  place  them  in  the  custody 
of  the  law  as  to  prevent  their  stoppage  in  transitu 
by  a  replevin.2  Replevin  is  not  the  proper  remedy 
for  disregard  of  a  claim  to  exemption  under  the 
act  of  1819.3 

Independently  of  the  statute,  replevin  will  not 
lie  for  goods  seized  for  non-payment  of  taxes.4 
Property  seized  for  the  non-payment  of  a  militia 
fine  is  within  this  statute.5  The  court  is  required, 
at  any  time  after  service,  on  motion,  to  quash  such 
writs  on  being  ascertained  of  the  truth  of  the  fact 
by  affidavit  or  otherwise.  A  sale  under  the  act 
concerning  strays  of  13th  April,  1807,  and  the 
supplement  thereto,  has  the  same  effect  as  a  sale 
in  market  overt  ;6  as  also  proceedings  under  the 
act  of  22d  March,  1817,  prohibiting  horse-racing 

1  Act  3d  April,  1799, 1  Sin.  Laws  470.     See  Willard  v.  Kim- 
ball, 10  Allen  211,  and  New  York  Code. 
I  lays  v.  Mouille,  2  Harris  48. 

3  G  Bousall  v.  Comly,  8  Wr.  442. 

4  Stiles  v.  Griffith,  3  Yeates  82.  The  People  v.  All  .any.  7 
Wend.  485.     Marriott  v.  Shaw,  Comyn'a  Rep.  275. 

5  Pott  v.  01  wine,  7  Watts  173. 

6  Patterson  v.  M'Vey,  7  Watts  4S2.  See  Act  22d  March, 
1817,  §  7,  6  Sm.  Laws  432. 


84  FOR   WHAT   REPLEVIN   WILL    LIE. 

upon  the  public  roads  within  the  city  and  county 
of  Philadelphia.1 

By  the  common  law  it  would  appear  that  re- 
plevin did  not  lie  for  goods  taken  by  the  sheriff  by 
virtue  of  an  execution  from  a  superior  jurisdic- 
tion.2 But  it  has  been  held  by  some  courts  that  a 
stranger  might  maintain  replevin  against  the  sheriff 
for  goods  taken  by  him  on  an  execution  against  a 
third  person.3  In  Kew  York,  before  the  present 
code,  it  was  held,  that  goods  taken  by  the  sheriff 
out  of  the  possession  of  the  defendant  could  not  be 
replevied  even  by  a  stranger ;  but  if  the  sheriff 
undertook  to  levy  an  execution  against  one  man 
upon  goods  in  the  possession  of  another,  replevin 
misrht  be  maintained.4  The  Massachusetts  statute 
expressly  provides,  that  where  goods  of  the  value 
of  more  than  twenty  dollars,  attached  on  mesne 
process,  or  taken  in  execution,  are  claimed  by  any 
person  other  than  the  defendant  in  the  suit,  such 

person  may  have  a  replevin.5  7**-     , 

1  J  x  ^i/f 

1  Patterson  v.  M'Vey,  T  Watts  482.  See  Act  22d  March, 
1817,  §  7,  6  Sm.  Laws  432. 

2  Lev.  Ent.  152.  Lutw.  1191.  Gilb.  Repl.  121.  Smith  v. 
Huntington,  3  N.  Hamp.  Rep.  76.  Aylesbury  v.  Harvey,  3 
Lev.  Rep.  304. 

3  Coursey  v.  Wright,  1  Har.  &  M'Henry  394.   Ladd  v.  North, 

2  Mass.  519. 

4  Thompson  v.  Button,  14  Johns.  84. 

5  Appendix  VI.  §  21. 


FOR  WnAT  REPLEVIN   WILL    LIB.  85 

But  if  the  real  owner  of  goods  suffer  another  to 
have  possession  of  his  property,  and  of  those  docu- 
ments which  are  the  indicia  of  ownership,  or  under 
circumstances  which  imply  a  right  to  sell,  then  a 
sale  by  such  a  person  would  bind  the  true  owner.1 
Thus,  in  the  case  of  Kapp  v.  Palmer,  Judge  Rogers 
says:2  "I  fully  subscribe  to  the  doctrine  that  an 
agent  may  bind  his  principal  within  the  limits  of 
an  authority  with  which  he  has  been  apparently 
clothed  by  the  principal  in  respect  to  the  subject 
matter.  If  a  principal  send  a  commodity  to  a  place 
where  it  is  the  ordinary  business  of  the  person  to 
whom  it  is  confided  to  sell,  it  must  be  intended 
that  the  commodity  was  sent  thither  for  the  purpose 
of  sale.  Thus,  if  the  owner  of  a  horse  send  it  to  a 
repository  of  sale,  it  must  be  intended  that  he  sent 
it  there  for  sale.  Or  if  one  send  goods  to  an  auction 
room,  it  cannot  be  supposed  that  he  sent  them 
thither  merely  for  safe  custody.  When  the  article 
is  sent  in  such  a  way  and  to  such  a  place,  as  to 
exhibit  an  apparent  purpose  of  sale,  the  principal 
will  be  bound.  In  the  cases  referred  to,  the  person 
and  the  place  both  indicate  the  nature  of  the  busi- 
ness carried  on.  It  would  be  a  fraud  on  the  pur- 
chaser, against  which  he  could  not  guard  himself 

1  Dyer  v.  Pearson,  3  Barn.  <fc  Cress.  38.  Irving  v.  Motley,  7 
Bing.  543.  Barnes  v.  Bartlett,  L5  Tick.  71.  Boyson  v.  Coles 
C  M.  &  Sel.  23.  *  3  W.  Lt8. 


86  FOR   WHAT   REPLEVIN   WILL    LIE. 

with  any  ordinary  care,  which  the  depository  was 
enabled  to  commit  by  the  unwise  conduct  of  the 
owner;  it  would,  therefore,  be  but  just  that  he 
should  bear  the  loss." 

In  a  previous  case,  where  A.  being  indebted  to 
B.  had  sold  him  a  chariotee  in  payment,  which  was 
left  in  the  possession  of  A.,  who  gave  to  B.  a 
receipt  for  it  on  storage,  and  afterwards  it  was 
sold  by  A.  to  a  third  person,  without  notice  of  the 
former  sale,  the  same  judge  holds  the  following 
language :  "  Wherever  there  is  a  sale  of  property, 
and  no  actual  possession  delivered,  it  remains  at 
the  risk  of  the  purchaser :  as  between  him  and  the 
vendor  the  property  is  his  ;  but  when  it  passes  into 
the  hands  of  a  bona  fide  purchaser,  without  notice, 
it  would  be  against  sound  policy  to  permit  a  re- 
covery. The  maxim  caveat  emptor  does  not  apply. 
I  hold  the  law  to  be  the  same,  whether  the  pos- 
sessor be  the  immediate  purchaser  from  the  origi- 
nal vendor,  or  from  his  fraudulent  vendee."1 

Of  late  years  a  distinction  in  favor  of  innocent 
purchasers,  founded  upon  the  manner  by  which 
possession  has  been  acquired,  and  the  intention  of 
the  owner  in  parting  with  his  property,  has,  on 
principles  of  policy  and  justice,  and  for  the  benefit 

1  Shaw  v.  Levy,  11  S.  &  R.  101. 


FOR   WHAT   REPLEVIN   WILL    LIB.  87 

of  trade,  been  gaming  ground.  In  this  country, 
it  is  already  well  established  in  Kew  York  and 
Massachusetts.1  By  the  rule,  as  there  est  abli  ^hed, 
if  one  obtain  possession  of  personal  property  with 
the  consent  of  the  owner,  and  with  the  intention, 
on  his  part,  to  change  the  property,  no  matter  by 
what  fraudulent  representations  this  assent  may 
have  been  obtained,  the  contract  is  not  absolutely 
void,  but  voidable,  and  a  bona  fide  purchaser  for 
valuable  consideration  will  be  entitled  to  the  pro- 
perty as  against  the  original  owner,  if  his  purchase 
has  been  made  before  the  original  contract  has 
been  avoided.  But  if  he,  at  the  time  of  his  pur- 
chase, had  knowledge  of  the  fraudulent  intentions 
or  misrepresentations  by  which  his  vendor  obtained 
the  property,  the  original  owner  may  recover  it 
from  him.2 

1  Mowrey  v.  Walsh,  8  Cow.  238.  Wheelwright  v.  Depeyster, 
1  Johns.  411.  Buffington  v.  Gerrish,  15  Mass.  156.  Root  v. 
Trench,  13  Wend.  570.  See  also,  Hollingsworth  v.  Napier,  3 
Caines  182.  Trott  v.  Warner,  2  Fairf.  227.  Cross  v.  Peters,  1 
Greenl.  376. 

2  Williams  v.  Merle,  11  Wend.  80.  Everett  v.  Coffin,  6  Wend. 
609.  Kindar  v.  Shaw,  2  Mass.  398.  Lloyd  w.  Brewster,  1 
Paige  537.  Johnson  v.  Peek,  1  Wood.  <fe  Min.  336.  Hall  w. 
Gilmore,  40  Maine  578.  Hunter  v.  The  Hudson,  20  Barb. 
493.  Pringle  v.  Phillips,  5  Sandf.  157.  Rowley  v.  Bigelow, 
13  Wend.  570.  Williams  v.  Given,  6  Grattan  268.  Robinson 
v.  Dauch,  3  Barb.  S.  C.  20. 


88  FOR   WHAT   REPLEVIN   WILL    LIE. 

As  between  the  parties  when  the  terms  of  the 
agreement  make  a  sale  for  cash,  if  the  purchaser 
after  obtaining  possession  refuses  to  pay,  the  seller 
may  immediately  repossess  himself  by  replevin.1 

In  Pennsylvania  the  point  has  not  been  explicitly 
ruled,  but  the  course  of  decisions,  and  the  dicta  of 
her  courts,  warrant  the  conclusion  that  she  will 
follow  the  doctrine  of  New  York  and  Massachu- 
setts. Thus,  Judge  Rogers,  in  the  case  of  Mackin- 
ley  v.  M'Gregor,  says  :  "  It  would  be  a  dangerous 
doctrine  to  establish,  that  where  a  person  purchases 
commodities,  which,  at  the  time,  he  is  conscious 
he  shall  be  unable  to  pay  for,  though  these  goods 
may  have  afterwards  passed  through  other  hands  in 
the  fair  way  of  purchase,  or  third  persons  may  have 
become,  in  the  regular  course  of  business,  interested 
in  them,  the  original  seller  shall  have  the  right 
to  recover  them,  in  whomsoever's  hands  they  may 
be."  And  again,  "  Replevin  or  trover  will  lie  by 
the  vendor,  against  the  vendee,  although  not  against 
a  bona  fide  purchaser,  without  notice  of  the  fraud.2 

1  Harris  v.  Smith,  3  S.  &  R.  20.  Henderson  v.  Lanck,  9 
Harris  359. 

2  Mackinley  v.  M'Gregor,  3  Wh.  396.  Knowles  v.  Lord,  4 
Wh.  506.  Smith  v.  Smith,  9  Harris  369.  Thompson  v.  Lee, 
3  W.  &  S.  479.  But  see  M'Mahon  v.  Sloan,  2  Jones  229. 
Hildeburn  v.  Nathans,  1  Phila.  567. 


FOR   WHAT   REPLEVIN   WILL    LIB.  80 

In  England,  the  doctrine  is  unsettled:  In  l In- 
case of  Parker  v.  Patrick,1  one  to  whom  goods, 
obtained  from  the  true  owner  by  false  pretences, 
had  been  pawned  for  a  valuable  consideration,  and 
without  notice  of  the  fraud,  was  held  to  be  entitled 
to  them ;  but  Lord  Denman,  in  Peer  v.  Humphn 
expresses  his  disapprobation  of  that  case,  and  rules 
against  it.  The  goods  in  Peer  v.  Humphrey  were 
feloniously  taken  from  the  real  owner.  Lord  Abin- 
ger  at  Nisi  Prius,  in  the  subsequent  case  of  Shep- 
pard  v.  Shoolbrcad,3  reasserts  the  doctrine  of  Par- 
ker v.  Patrick,  without  referring,  however,  either 
to  that  case  or  to  Peer  v.  Humphrey.  In  a  sub- 
sequent case,  Load  v.  Green,4  Baron  Parke  says  : 
"  The  case  of  Parker  v.  Patrick  has  been  doubted, 
but  I  think  it  may  be  supported  on  the  ground 
that  the  transaction  is  not  absolutely  void,  except 
at  the  option  of  the  seller.  He  ma}r  elect  to  treat  it 
as  a  contract,  and  he  may  do  the  contrary  before 
the  buyer  has  acted  as  if  it  were  such,  and  resold 
the  goods  to  a  third  party." 

It  is  said  in  an  old  case  that  replevin  does  not 

1  5  T.  R.  175. 

2  2  Adol  &  Kllis  495,  4  Xev.  &  M.  430. 

3  1  Car.  &  Marsh.  01.     See  Noble  v.  Adams,  7  Taunt.  59. 

4  15  Mee.  &  W.  216.    White  v.  Garden,  10  Common  Bench 
919.     And  see  Irving  v.  Motley,  7  Bingh.  543. 


90  EOR   WHAT   REPLEVIN   WILL    LIE. 

lie  for  money,1  or  for  leather  made  into  shoes, 
This  is  founded  on  the  supposed  impossibility  of 
identification.  Money  in  a  box,  or  leather  made 
into  shoes,  if  sufficiently  identified,  may  no  doubt 
now  be  recovered  in  thi  s  action.  When  the  property 
has  been  so  materially  changed,  a  new  right  of  action 
arises  to  reclaim  it  by  replevin  in  that  shape  which 
it  has  assumed.  And,  in  this  case,  it  should  be 
described  in  the  writ  as  it  existed  at  the  time  of  the 
commencement  of  the  suit.2  "Where  there  was  an 
agreement  for  the  sale  of  corn,  to  be  paid  for  on  the 
delivery  of  the  last  load,  and  the  corn,  as  hauled  to 
the  buyer's  mill,  was,  in  the  presence  of  one  of  the 
sellers,  emptied  in  a  heap  with  other  corn,  and  after 
delivery  of  the  last  load  the  buyer  failed  to  pay,  it 
was  held  that  the  mixture  did  not  prevent  the  re- 
clamation of  as  much  of  the  corn  as  the  vendor  de- 
livered, and  that  replevin  lay  for  it.3 

Replevin  will  lie  for  a  swarm  of  bees,4  and  for 
the  increase  of  animals,  though  the  increase  were 
after  the  taking  ;5  but  not  for  animals/erce  naturm, 
and  unreclaimed.6 

1  Banks  v.  Whetstone,  Moor.  394. 

2  Brown  v.  Sax,  7  Cowen  95.  Betts  v.  Lee,  5  Johns.  348. 
JVingate  v.  Smith,  20  Maine  R.  287.    Snyder  v.  Vaux,  2  R.  427. 

3  Henderson  v.  Lauck,  9  Harris  359. 
*  F.  N.  B.  68. 

5  F.  N.  B.  69.     Sid.  82. 

6  2  Roll.  Ab.  430. 


FOR   WHAT   REPLEVIN    WILL    LIE.  91 

In  Maryland  it  is  the  proper  remedy  for  the  re- 
covery of  an  apprentice.1 

It  was  held  in  England  that  replevin  did  not  lie 
for  goods  taken  beyond  the  seas,  though  afterwards 
brought  to  England  by  tin-  defendant.9  Because, 
it  was  said,  the  taking,  which  wis  the  gist  of  the 
action,  was  beyond  the  seas.  In  this  country, 
where  the  unlawful  detention  is  as  much  in  ques- 
tion as  the  taking,  this  ruling  of  Pollexfen  would 
hardly  be  recognized. 

Replevin  will  lie  for  a  ship  and  her  sails;1  but 
not  after  a  decree  of  condemnation  as  prize  by  a 
court  of  Admiralty.4 

A  case  of  some  interest,  as  involving  the  question 
of  jurisdiction,  has  lately  been  before  the  district 
court  of  the  United  States  for  the  Eastern  District 
of  Pennsylvania.  The  barque  Royal  Saxon  was 
taken  on  a  foreign  attachment  issued  out  of  the 
supreme  court  of  Pennsylvania,  and  under  the 
regular  proceedings  in  the  action  was  sold  by  order 

1  1  Dorsey's  Stat,  of  Md.  827. 

2  Nightingale  u.  Adams,  1  Show.  01,  Case  02. 

3  Marsh.  110.    Prideaux  v.  Warne,  Sir  Thomas  Raym.  232. 

4  W.  B.  w.  Latimer,  4  Dall.  Apjpx.  I.  Certain  Logs  of  Ma- 
hogany, 2  Sumner  580. 


92  FOE    WHAT   REPLEVIN   WILL    LIE. 

of  the  court,  on  the  9th  February,  1848,  as  a  charge- 
able commodity,  and  purchased  by  Ward  &  Co.,  of 
New  York.  On  the  22d  January,  1848,  after  the 
issuing  of  the  foreign  attachment,  and  before  the 
sale  to  Ward  &  Co.,  the  barque  was  libelled  in  the 
United  States  district  court  for  the  Eastern  Dis- 
trict of  Pennsylvania  by  the  mariners  for  their 
wages,  and  was  sold  under  process  in  that  case 
to  Robet  Taylor,  of  Philadelphia,  and  delivered  to 
him  on  the  15th  February,  1818,  Ward  &  Co.  not 
intervening  to  oppose  the  proceedings.  On  the 
21th  February,  1848,  Ward  &  Co.  issued  a  writ  of 
replevin  from  the  supreme  court  of  Pennsylvania, 
making  Robert  Taylor  defendant,  and  giving  a  re- 
plevin bond  to  the  sheriff  in  the  usual  form,  in  the 
sum  of  twelve  thousand  dollars,  no  satisfactory 
claim  property  bond  having  been  tendered,  the 
barque  was  delivered  to  the  plaintiffs  on  the  1st 
March,  1848.  On  the  following  day,  Taylor  ex- 
hibited his  libel  in  the  district  court  of  the  United 
States  for  the  property  and  possession  of  the  said 
barque,  upon  which  the  barque  was  taken  into  the 
possession  of  the  marshal,  but  subsequently  de- 
livered to  Ward  &  Co.  on  their  entering  into 
stipulations  in  nine  thousand  dollars  to  abide  the 
decree  of  the  court.  A  plea  to  the  jurisdiction, 
alleging  the  pendency  of  the  replevin  suit  in  the 
state  court,  was  entered  by  Ward  &  Co.,  and  over- 


FOR   WHAT    REPLEVIN    WILL    LIE.  93 

ruled;  after  which  they  put  in  their  answer,  setting 
out  the  foregoing  facts  at  length,  and  insisting 
strongly  on  the  pendency  of  the  action  of  replevin 
in  the  state  court,  in  which  they  had  given  bonds 
in  twelve  thousand  dollars  for  a  return,  if  a  return 
should  be  awarded,  and  that  the  said  court  had 
complete  jurisdiction  thereof. 

The  learned  judge  of  the  district  court  overruled 
all  the  points  made  by  the  respondents,  and  con- 
cluded his  opinion  with  the  following  observations: 
"A  sale  in  the  admiralty  would  lose  much  of  its 
recognized  efficiency  and  value,  if  the  party  whom 
it  evicted  could  at  once  restore  himself  to  posses- 
sion by  a  common  law  writ,  and  if  the  admiralty, 
by  force  of  the  same  writ,  were  precluded  from 
reinstating  its  vendee.  The  suitor  in  this  court 
would  have  less  confidence  of  attaining  the  prompt 
and  effective  justice  which  he  seeks,  if  after  a 
decree  rendered  and  even  executed  here  the  whole 
question  might,  at  the  election  of  his  adversary, 
be  submitted  to  review  in  another  tribunal,  con- 
stituted under  different  laws,  proceeding  by  dif- 
ferent forms,  and  recognizing  other  responsibilit  Les : 
and  the  constitutional  policy  which  has  extended 
the  judicial  power  of  the  United  States  to  'all 
cases  of  admiralty  and  maritime  jurisdiction,' 
would  be  frustrated,  if  the  adjudications  of  such 
7 


91  FOE   WHAT    REPLEVIN   WILL   LIE. 

cases  by  the  courts  of  the  Union  were  not  in  fact 
as  in  form,  final  and  conclusive.  It  is  therefore 
adjudged,  ordered,  and  decreed,  that  possession  of 
the  said  barque,  the  Royal  Saxon,  be  delivered  to 
the  libellant,  as  the  true  and  proper  owner  thereof, 
and  that  the  costs  of  this  proceeding  and  decree 
be  paid  by  the  claimants."  The  claimants  carried 
the  cause  by  appeal  to  the  circuit  court.  The 
judgment  was  reversed  on  the  ground  that  the 
state  court  had  exclusive  jurisdiction  by  virtue  of 
the  replevin  which  preceded  the  proceedings  in 
admiralty.1 

As  a  general  proposition,  title  to  land  cannot  be 
tried  in  an  action  of  replevin,2  nor  can  a  house 
built  on  leased  land  be  taken  in  replevin,  nor  will 
the  writ  justify  the  severance  and  delivery  of  fix- 
tures.3 One  out  of  possession  of  land  cannot  try 
his  title  to  it  against  one  in  the  actual  possession 
with  claim  of  title  by  bringing  replevin  or  trover 
against  him  for  timber  cut  or  slates  quarried  upon 
the  premises.4     This  would  not  hold  good  if  the 

1  1  Wallace,  J.  Rep.  311. 

2  Eaton  v.  Southby,  Willes  131.  Snyder  v.  Yaux,  2  R.  42 7. 
Vausse  v.  Russel,  2  McCord  329. 

3  Roberts  v.  Dauphin  Bank,  7  Harris  71. 

4  Brown  v.  Caldwell,  10  S.  &  R.  1 1 4.  Powell  v.  Smith,  2  Watts 
126.  Mather  v.  Trinity  Church,  3  S.  &  R.  509.  Baker  v. 
Howel,  6  S.  &  R.  476.     De  Mott  v.  Hagermann,  8  Cow.  220. 


FOE   WHAT   REPLEVIN   WILL    LIE.  (.'.~ 

timber  cutter  or  quarrier  were  a  trespasser  merely 
without  permanent  possession.  But  one  in  posses- 
sion of  land  Avith  claim  of  title,  or  having  the  con- 
structive possession  which  the  law  casts  upon  the 
owner  of  the  legal  title  of  wild  or  unseated  land, 
may  maintain  replevin  for  timber  severed  from  it, 
and  carried  away  by  a  trespasser,  and  this  though 
the  timber  has  been  worked  into  posts  and  rails  or 
shingles,  or  what  not,  since  the  severance.1 

In  the  case  of  Elliott  v.  Powell,2  which  was  re- 
plevin for  eighty  dozen  of  wheat  in  the  sheaf,  the 
plaintiff  proved  that  he  had  cleared  the  ground, 
fenced  it,  and  put  in  the  crop  of  wheat,  and  was  in 
the  possession  of  the  premises,  and  that  the  defend- 
ant cut  and  carried  away  the  grain.  The  defendant 
offered  to  prove  that  the  land  was  his,  that  the  plai  n- 
tiff  in  sowing  the  grain  was  a  trespasser,  that  he 
(the  defendant)  entered  upon  the  premises  and  took 
the  actual  possession  thereof,  which  he  had  main- 
tained ever  since,  and  that  while  in  possession  he 
cut  the  grain.  The  supreme  court,  Judge  Rogers 
delivering  the  opinion,  say:  "We  are  of  opinion 

1  Snyder  v.  Vaux,  2  R.  427.  Clement  v.  Wright,  4  Wrigbt 
250.  Heaton  v.  Fimllev,  2  Jones  304.  Brewer  v.  Fleming.  1 
P.  F.  Smith,  102.  Corbett  v.  Lewis,  3  P.  F.  Smith  322.  Young 
v.  Herdic,  5  P.  F.  Smith  172. 

2  10  Watts  454. 


96  FOR   WHAT   REPLEVIN   WILL    LIE. 

that  the  evidence  was  admissible,  because,  if  true, 
it  is  a  flat  bar  to  the  action.  It  would  show  that 
the  locus  in  quo  was  his  freehold,  that  by  the  entry 
the  possession  of  the  plaintiff  was  divested,  and 
the  defendant  was  reinstated  in  the  possession  of 
the  premises."  "By  the  entry  of  the  tenant  of 
the  freehold,  he  is  in  possession  and  the  owner  of 
the  grain  raised  on  the  premises."  "  It  is  a  mis- 
take to  suppose  that  the  title  to  real  estate  may 
not  be  incidentally  tried  in  a  transitory  action." 
If  machinery,  which  is  part  of  the  freehold,  as  it 
is,  whenever  it  is  necessary  to  constitute  the  pre- 
mises what  they  purport  to  be  is  dissevered  by  the 
former  owner  after  a  sale  by  himself  or  by  the 
sheriff,  the  purchaser  of  the  real  estate  may  main- 
tain replevin  for  the  machinery,  against  the  person 
who  detached  it,  and  this  although  he  can  only 
make  title  to  the  chattel  by  proving  title  to  the 
land.1 

The  statute,  2  Will.  &  Mary,  c.  5,  enacts,  "  That 
sheaves  or  cocks  of  corn,  loose  or  in  the  straw,  or 
hay  in  any  barn  or  granary,  or  in  any  hovel,  stack, 
or  rick,  or  otherwise  in  any  part  of  the  land,  may 
be  seized  or  secured  for  rent,  and  detained  until 
the  same  be  replevied."  Since  that  statute,  a  re- 
plevin has  always  been  allowed  of  such  corn  or 

1  Harlan  v.  Harlan,  3  Harris  507. 


FOR    WHAT    REPLEVIN'    WILL    LIB.  07 

hay,1  and  subsequently  by  the  statute  11  Geo.  2, 
ch.  19,  sec.  8,  a  distress  being  permitted  on  corn, 
grass,  hops,  roots,  fruits,  pulse,  or  other  produce 
growing,  though  such  distress  was  of  things  an- 
nexed to  the  freehold,  and  though  no  words  ex- 
pressly authorize  a  replevin,  yet  it  is  the  constant 
practice  to  try  the  legality  of  such  distress  in  an 
action  of  replevin.2  The  seventh  section  of  the 
Pennsylvania  act  of  21st  March,  1772,  seems  to 
be  a  transcript  of  this  last  act,  and  will  probably 
receive  the  same  construction.3 

It  is  said  in  England  that  replevin  will  not  lie 
for  title  deeds,  as  they  savor  of  the  realty.4  If  a 
title  paper,  a  lease  for  instance,  is  delivered  to  the 
plaintiff,  no  transfer  of  the  possession  of  the 
premises  is  effected.  The  writ  cannot  be  made  to 
do  the  duty  of  a  liberari  facias  possessionem.' 

It  will  lie  for  the  recovery  of  parish  records,"  and 
for  the  books  of  a  corporation. 

1  Wilk.  Repl.  3,  4. 
■  Wilk.  Repl.  3, 4. 
8  Hellings  u.  Wright,  2  Harris  373. 

4  Brooke  Abr.  tit.  Repl.  34. 

5  Clark  r.  Nevill,  1  Phila.  Rep.  28. 

6  Sawyer  u.  Baldwin,  11  Tick.  492.  Southern  Plank  Road 
Co.  v.  Ilipon,  5  Ind.  1C5. 


CHAPTER  III. 


THE   WRIT    OF    REPLEVIN, 


The  writ  of  replevin,  as  we  have  seen,  was,  in 
England,  a  jnstitial  writ,  commanding  the  sheriff 
to  cause  deliverance  to  be  made  of  the  property. 
There  was  no  summons  to  the  defendant,  and  the 
writ  was  not  returnable.     It  was  in  this  form : — 

"  The  King  to  the  Sheriff  of  Nottingham,  health. 
"We  command  you  that  justly  and  without  delay 
you  cause  to  be  replevied  to  A.  his  cattle,  which 
he  complains  that  B.  took,  and  unjustly  detains : 
And  after,  cause  him  to  be  brought  to  justice  for 
the  same :  That  we  hear  no  more  complaint  for 
want  of  justice."1 

If  the  sheriff  neglected  or  refused  to  execute  this 
writ,  an  alias  or  pluries  with  a  clause  of  return 
might  be  issued.2  This  writ  is  no  longer  in  use 
in  England. 

In  the  United  States,  generally,  the  writ  com- 
mands the  sheriff*  to  replevy  and  deliver  certain 

1  Reg.  Brew  81. 

2  See  ante,  53. 


THE    WRIT    OF    REPLEVIN".  99 

articles,  enumerating  them,  the  property  of  the 
plaintiff,  and  to  summon  the  defendant.1  In  New 
York  it  seems  not  to  be  necessary  to  specify  the 
property  in  the  writ.2  And  in  Tennessee,  by  the 
act  of  15th  January,  184(3,  if  there  be  several  de- 
fendants, living  in  separate  counties,  counterparts 
of  the  summons  may,  at  the  instance  of  the  plain- 
tiff, issue  in  each  county.  In  Xew  York,  Kentucky, 
Missouri,  Arkansas,  Ohio,  and  Tennessee,  the  re- 
vised statutes  require  an  affidavit  to  be  filed,  before 
the  issuing  of  the  writ,  stating  the  justness  of  the 
claim,  that  the  plaintiff  is  entitled  to  the  possession, 
and  that  the  property  has  been  wrongfully  taken 
or  detained  by  the  defendant.  In  the  statutes  of 
Missouri,  Ohio,  Kentucky,  Maine,  Xew  Hampshire, 
Vermont,  and  Massachusetts,  no  provision  is  made 
for  the  course  to  be  pursued,  if  a  claim  of  property 
is  made  by  the  defendant.  In  Massachusetts  and 
Missouri  such  claim  is  entirely  disregarded.  The 
same  practice  is  believed  to  prevail  in  the  other 
states  above  enumerated. 

The  statutes  of  Arkansas  provide  for  an  inquest 
in  such  case,  to  be  summoned  at  the  instance  of 
the  defendant,  pending  whose  deliberations  the 
property  remains  in  the  custody  of  the  sheriff. 

1  Sec  Appx.  A.,  Snedeker  v.  Quick,  6  Halst.  IT1. 

2  Finehout  v.  Crain,  4  Hill  537. 


100  THE    WRIT    OF    REPLEVIN. 

In  Pennsylvania  the  writ  is  in  personam  as  well 
as  in  rem,  and  does  not  come  under  the  term 
"  summons"  in  the  fee  bill  of  1821,  bnt  under  the 
phrase  "  other  writs,"  for  which  the  prothonotary 
is  entitled  to  charge  seventy-five  cents.1  It  is 
returnable  on  the  first  day  of  the  term.  In  the  city 
and  county  of  Philadelphia,  and  county  of  Alle- 
ghany, the  writ  may  be  made  returnable  to  the  first 
day  of  the  term  next  succeeding  the  time  at  which 
it  is  issued,  or  to  the  first  Monday  of  any  interme- 
diate month  at  the  election  of  the  party  suing  out 
the  same.1  And  it  seems  that  the  jurisdiction  of 
the  district  court  does  not  depend  on  the  amount 
of  the  rent  in  arrear.2 

It  will  be  fatal  to  the  writ,  if  the  first  day  of  the 
term  come  between  the  test  of  the  writ  and  the  day 
to  which  it  is  made  returnable.  Thus  in  !N"ew 
York  a  writ  of  replevin  tested  at  one  term,  and 
returnable  the  next  term  but  one,  an  entire  term 
intervening,  was  held  voidable.3  In  that  state  the 
revised  statutes  gave  a  clause  of  capias  against  the 

1  Baldwin  v.  Cash,  7  W.  &  S.  425.  7  Sm.  Laws  367.  Bower 
v.  Tallman,  5  W.  &  S.  501. 

2  Hirst  v.  Moss,  3  Phila.  457.  Ancora  v.  Burns,  5  Binney 
522. 

3  Cayward  v.  Doolittle,  6  Cow.  602. 


THE    WRIT    OF    REPLEVIN".  101 

defendant,  in  ease  the  goods  could,  not  be  found. ' 
And  the  code  of  procedure  contains  a  similar 
provision.1  In  Michigan  an  affidavit  is  required 
to  accompany  the  writ,  stating  that  the  property 
was  not  taken  for  any  assessment  levied  by  virtue 
of  any  law  of  that  state.2 

The  writ  must  be  served  upon  the  defendant  as 
other  writs  are  served,  and  the  goods  delivered  to 
the  plaintiff,  unless  their  delivery  is  prevented  by 
a  claim  of  property,  or  they  cannot  be  found.  A 
symbolical  delivery3  is  not  sufficient  unless  with 
the  consent  of  the  plaintiff.  By  the  statute  West. 
1,  ch.  17,  where  one  had  taken  the  beasts  of  another 
and  driven  them  into  a  castle  or  fortress  to  prevent 
the  owner  from  having  a  replevin,  the  sheriff  was 
authorized,  after  solemn  demand  and  refusal  to  de- 
liver, to  break  the  castle  or  fortress  to  make  reple- 
vin. And  in  Semayne's  case,4  it  is  said  that  this 
act  is  but  an  affirmance  of  the  common  law;  for  by 
the  common  law  the  privilege  of  a  man's  house 
extends  only  to  him  and  his  family,  and  to  his  own 

1  2  Vol.  Revised  Stat.  p.  430,  title  12,  154th  sect,  3d  clause, 
code  of  procedure,  winch  took  effect  on  the  first  day  of  May, 
A.  D.  1848. 

2  Phenix  v.  Clark,  2  Mich.  327. 

*  Hayes  v.  Lusby,  5  liar.  &  J.  485. 
4  5  Coke  91,  a. 


102  THE   WRIT    OF    REPLEVIN. 

proper  goods,  or  to  those  which  are  lawfully  and 
without  fraud  and  covin  there ;  but  according  to 
Lord  Coke,  the  statute  was  necessary  to  justify 
the  sheriff  in  breaking  an  outer  door  at  the  suit  of 
a  subject.1 

In  the  New  York  revised  statutes  there  was  a 
provision  similar  to  the  statute  "West.  1,  ch.  17.2 
It  is  also  to  be  found  in  the  new  code.  There  is 
the  same  provision  in  the  statutes  of  "Wisconsin, 
Ohio,  Arkansas,  New  Jersey,  and  Michigan.  The 
seventeenth  chapter  of  the  statute  Westminster 
first,  is  not  reported  by  the  judges  to  be  in  force 
in  Pennsylvania.  There  is  no  similar  enactment 
in  that  state.  In  the  case  of  Kneas  v.  Fitler,  the 
supreme  court  held  that  the  sheriff  had  a  right  to 
enter  the  house  of  the  defendant  in  replevin  to 
search  for  the  goods,  but  expressly  declined  saying 
anything  as  to  his  right  to  break  the  outer  door 
in  case  of  being  refused  admittance.3 

To  the  clause  of  summons  in  the  writ,  the  sheriff 
returns  either  summoned  or  nihil  habet  as  in  other 
cases.  In  England,  and  wherever  the  English  law 
is  unchanged  by  statute  or  custom,  if  there  is  a 

1  2  Inst.  193. 

2  2  Rev.  Stat.  p.  431,  title  12,  §  10. 

3  2  S.  &  R.  263. 


THE   WRIT   OF   REPLEVIN'.  L03 

claim  of  property,  the  sheriff  returns  that  fact  to 
the  writ,  and  it  suspends  further  proceedings,  un- 
less the  plaintiff  purchase  the  writ  de  proprietate 
probanda.  If  a  claim  property  bond  has  been 
given,  he  returns  that  fact.  If  the  goods  or  part 
of  them  have  been  delivered  to  the  plaintiff,  his 
return  will  be  in  accordance,  and  will  enumerate 
the  goods  replevied  and  delivered  to  the  plaintiff;1 
and  as  to  those  not  delivered,  he  will  return 
eloigned,  or  he  may  return  that  no  person  came  to 
show  him  the  goods.2  And  it  is  a  good  return  to 
say  that  the  cattle  are  dead,3  or  the  goods  destroyed, 
as,  for  instance,  by  fire.  The  sheriff  should  not 
deliver  more  articles  than  are  named  in  the  writ. 
Thus,  a  writ  requiring  him  to  replevy  four  hundred 
tons  of  ore,  will  not  justify  him  in  delivering  seven 
hundred  and  twenty  tons.4  He  cannot  return  that 
the  defendant  did  not  take  the  goods,  for  that  is 
supposed  in  the  writ,  and  may  be  one  of  the  mat- 
ters in  controversy,  and  he  can  neither  falsify  the 
writ,  nor  clear  the  defendant  of  the  taking  by  his 

1  Bro.  Ret.  Brev.  pi.  1 00. 

2  Dalt.  Shff.  556.  More  v.  Clypsam,  Aleyn  32.  Burn  v. 
Mattaine,  Cas.  Temp.  Hardw.  119.  1  Lord  Ray.  613.  Kneaa 
v.  Fitter,  2  S.  &  R.  266. 

3  Bro.  Ret.  Brev.  pi.  12."). 

4  Dewitt  v.  Morris,  13  Wend.  496.  Gardner  v.  Lane,  9 
Allen  492. 


104  THE   WRIT    OF   REPLEVIN". 

return.1  And  therefore  it  is  said  (in  the  second 
resolution  in  Moor  r.  Watts),  case  does  not  lie 
against  the  sheriff  for  a  false  return,  if  he  returns 
eloigned ;  and  for  the  same  reason,  the  defendant 
shall  not  be  concluded  by  it,  but  when  he  conies 
and  denies  the  return  by  plea  of  non  cepit,  his 
denial  shall  be  as  good  as  the  surmise  of  the  writ, 
and  rather  better,  because  the  proof  is  incumbent 
on  the  plaintiff.2 

The  above  reason  applies  only  to  the  case  of  a 
defendant.  It  would  seem,  therefore,  that  an 
action  might  be  maintained  by  the  plaintiff  against 
the  sheriff  for  a  false  return,  if  he  should  persist  in 
a  refusal  to  replevy  the  goods,  and  return  eloigned. 

Replevin  is  sometimes  called  a  local  action.3  In 
some  respects  it  is  so.  It  cannot  be  sustained 
unless  the  defendant  has  had  the  goods  in  the  place 
laid  in  the  declaration,  for  the  place  is  material  and 
traversable.4  But  the  action  is  so  far  transitory 
that  it  may  be  brought  in  any  county  in  which 

1  Moor  v.  Watts,  1  Lord  Ray.  613.     Lutw.  581. 

2  1  Lord  Ray.  613. 

3  Gould's  PL  118.  1  Chitty's  PL  161.  Atkinson  v.  Hol- 
comb,  4  Cow.  45.     Williams  v.  Welch,  5  Wend.  290. 

4  1  Saund.  34?,  p.  1.     Johnson  v.  Wollyer,  1  Stra.  507. 


THE    WBIT    OF    BEPLEVXBT.  105 

the  defendant  has  had  the  articles  since  the 
taking.1  And  the  safest  course  is  to  lav  the  place 
in  the  county  where  the  writ  issues.  In  Massa- 
chusetts it  is  said  that  this  is  necessary.2 

A  question  may  arise  as  to  the  duty  and  respon- 
sibility of  the  sheriff,  when  he  finds  the  goods  in 
the  possession  of  a  third  party,  not  named  in  the 
writ,  who  has  both  the  property  and  the  possession. 
In  England,  the  law  on  this  subject  is  involved  in 
some  obscurity.  In  one  case  the  sheriff  was  said 
not  to  be  liable  to  an  action  of  trespass,  if  he  took 
the  goods  under  such  circumstances.  And  the 
taking  in  replevin  was  said  by  Holt  not  to  resem- 
ble the  taking  of  one  man's  goods  on  a  fieri  facias 
against  another,  because  in  the  latter  case  the 
officer  is  commanded  to  take  the  goods  of  a  par- 
ticular person — in  the  former  he  is  commanded  to 
take  specific  articles  enumerated  in  the  writ.  He 
said  farther,  that,  if  the  owner  claimed  property  in 
the  goods,  at  the  time  of  taking,  and  the  sheriff, 
notwithstanding,  took  them  away,  without  having 
the  right  of  property  determined,  on  a  writ  de  pro- 
prietate  probanda,  he  was  liable  to  an  action  of 

1  Doc.  PI.  315.     F.  N.  B.  69.     Wilk.  Repl.  40.     Brown  v. 
Caldwell,  10  S.  &  R.  114.     Elliott  u.  Bo  well,  10  AVatts  154. 

2  Robinson  v.  Mead,  7  Mass.  353. 


106  THE   WRIT    OF   REPLEVIN. 

trespass.1  It  is  to  be  remarked,  however,  that  the 
case  does  not  seem  to  raise  the  question,  and  there- 
fore Lord  Holt's  observations  have  not  the  weight 
which  would  otherwise  attach  to  them. 

In  Rolle's  Abridgment  it  is  said,  if  the  sheriff, 
on  a  replevin  sued  by  J.  D.,  deliver  the  beasts  of 
a  stranger,  on  the  showing  of  J.  D.,  the  owner  of 
the  beasts  can  have  an  action  of  trespass  against 
him.2  But  from  Keilway's  Eeports  it  would  rather 
seem  that,  in  his  opinion,  the  action  in  such  a  case 
should  be  against  the  plaintiff.3  It  is  also  said  in 
Rolle  that  one  who  is  not  party  to  the  replevin 
shall  not  have  the  writ  de  proprietate  probanda, 
and  the  same  thing  is  asserted  in  the  argument  of 
counsel  in  Miller  v.  Davies  et  al.,  Comyn's  Rep. 
596.  Perhaps  the  true  distinction  was,  that  a 
stranger  could  not  maintain  the  action  of  trespass 
when  the  goods  were  found  in  the  possession  of 
the  defendant,  but  when  they  were  found  in  the 
possession  of  the  stranger  he  might ;  for  the  writ 
of  replevin  might  then  be  no  justification  to  the 
sheriff,  which  it  was,  if  he  obeyed  it  strictly,  as 

1  Hallet  v.  Byrt,  Carth.  381.     Leonard  v.  Stacey,  G  Mod.  68, 
138,  140.     Shipman  v.  Clark,  4  Denio  446. 

2  2  Roll.  Abr.  552,  §  6,  and  against  the  plaintiff,  2  Roll.  553 
§  10. 

3  Keilway  119,  pi.  64.     lb.  129,  pi.  96. 


THE   WRIT    OF    REPLEVIN'.  1  <  >7 

appears  from  the  case  of  Miller  v.  Davies  e1  al., 
where  it  was  held,  that  the  "writ  was  a  justification 
to  the  sheriff  for  taking  the  goods  from  the  pos- 
session of  the   defendant,  without    showing    the 
property  in  the  goods  to  he  in  the  plaintiff'. 


i 


But  Gilbert  says:    "If  the  sheriff  injures  the 

defendant  in  the   execution   of  the   replevin,  by 

taking  some  of  his  cattle,  the  defendant  has  his 

action  of  trespass    against    him,  as  in  all    other 

cases  of  trespass,"2  and  this  is  most  in  accordance     J 

f  *  I 
with  the  general  principles  of  law. 

The  New  York  revised  statutes  provided  for  this    ^    .. 
case  by  requiring  the  sheriff  to  summon  a  jury  to  \  ^ 
try  the  right  of  property,  whenever  the  defendant   ^ 
or   any  other  person  in  possession  of  the  goods 
specified  in  the  writ    claimed   property   therein.  >  -j 
The  new  code  of  procedure  has  no  similar  provi-   ] 
sion,  but  would  seem  to  confine  the  sheriff's  right  ^   | 
to  make  deliverance  to  cases  in  which  the  property, 
is  in  the  possession  of  the  defendant  or  his  agent. Li 
In  Pennsylvania,  the  writ  de  proprietate  proband;) 
is  not  in  use.      The  claim  property  bond  is  the 
creature  of  practice,  and  is  taken   in  all   cases, 

1  Comyn's  Rep.  590. 

2  Gilb.  Repl.  73. 

5  Code  Proc.  §  184. 


108  THE    WRIT    OF    REPLEVIN". 

where  property  is  claimed,  from  the  party  claiming 
the  property,  whether  he  be  the  defendant  in  the 
writ  or  the  person  in  possession  of  the  property, 
or  an  entire  stranger.  And  there  is  no  reason  why 
the  bond  should  not  be  good,  if  given  with  a  con- 
dition to  be  responsible  for  the  value  of  the  goods, 
in  case  the  plaintiff  succeeds  in  his  suit,  and  to 
indemnify  the  sheriff.  Some  such  arrangement 
would  seem  to  be  required,  in  justice  both  to  the 
claimant  and  to  the  officer.  If  the  claim  of  pro- 
perty is  of  such  grave  importance  as  to  prevent 
the  goods  being  taken  from  the  possession  of  the 
defendant,  much  more  would  it  seem  that  such 
claim  should  prevent  the  possession  of  a  third 
party  from  being  violated.  And  though  in  Eng- 
land the  writ  as  a  proceeding  in  rem  was  said  to 
shield  the  sheriff,  it  may  be  found  not  to  have  that 
effect  here,  where  it  is  in  personam  as  well  as  in 


If  the  party  in  possession,  not  being  the  defend- 
ant, and  claiming  property,  refuses  or  is  unable  to 
give  a  bond,  the  sheriff,  under  such  circumstances, 
runs  a  risk  in  executing  the  writ,  for  it  is  by  no 
means  certain  that  the  replevin  bond  protects  him. 

1  English  v.  Dalbrow,  1  Miles  161.  Morris  v.  Parker,  3 
Mass.  310.     Stimpson  v.  Reynolds,  14  Barb.  506. 


THE    WRIT    OF    REPLEVIN.  L09 

It  may  be  said,  that  taking  the  goods  from  the 
possession  of  a  party,  not  named  in  the  writ,  is  no 
execution  of  the  writ,  but  a  voluntary  act  of  the 
sheriff.  In  such  a  case,' it  was  held  in  Massachu- 
setts that  the  owner  might  maintain  his  possession 
by  force,  in  the  same  manner  that  he  might  against 
any  trespasser  not  an  officer.1 

The  statute  of  limitations  applies  to  this  action. 
and  consequently  the  writ  must  be  issued  within 
six  years  from  the  unjust  taking  or  detention;  and 
in  cases  of  distress  the  action  may  be  brought  at 
anytime  before  actual  sale,  notwithstanding  tin- 
statute  2  Wm.  &  M.  ch.  5,  or  the  act  of  21s1 
March,  1772.2 

It  has  been  held  in  New  York,  that  a  writ  of 
replevin  issued  by  a  defendant,  to  obtain  a  rede- 
liverance  of  property  taken  from  him  by  virtue  of 
a  writ  of  replevin  issued  against  him,  is  irregular, 
and  will  be  superseded  with  costs,  if  the  motion 
be  made  before  the  return  of  the  writ,  or  set  aside 
after  the  return.3     The  contrary  doctrine  is  held  in 

1  Commonwealth  v.  Cennard,  8  Pick.  133.  State  o.  Jen- 
nings, 14  Ohio  State  11.  IS.     King  w.  Orser,  4  Dun-  431. 

-  1  Sm.  Laws,  3T0.     Jacob  v.  King,  1  Marsh.  135. 
3  Morris  v.  De  Witt,  5  Wend.  7 1 . 
8 


110  THE   WRIT    OF    REPLEVIN. 

Pennsylvania,  unless  there  has  been  a  judgment  in 
favor  of  the  plaintiff  in  the  first  suit.1  But  if  on 
replevin  against  A.,  the  goods  of  B.  are  taken,  it 
seems  B.  may  repossess  himself  by  replevin.2 

1  Lovett  v.  Burkhardt,  8  Wright  1?4.  But  see  Lowry  u. 
Hall,  2  W.  &  S.  129. 

2  Clark  v.  Skinner,  20  Johns.  465.  See  Revised  Statues  of 
Michigan,  part  3,  tit.  4,  ch.  5.  Rev.  Stat.  Missouri  1845,  ch. 
921. 


CHAPTER  IV. 

THE  PARTIES  IN  REPLEVIN. 

Generally  every  person  of  full  age,  entitled 
to  the  possession  of  personal  property,  and  not 
under  any  disability,  may  maintain  replevin  there- 
for. 

Executors  and  administrators  may  have  replevin 
of  goods  taken  in  the  lifetime  of  the  testator  or 
intestate.1  If  the  goods  of  a  feme  sole  are  taken, 
and  she  afterwards  marry,  the  husband  alone  must 
bring  the  replevin,  in  this  case  it  has  been  held 
that  she  could  not  join  ;2  but  if  she  hold  the  goods 
taken  as  executrix,  then  she  may  join.3  If  timber 
be  cut  on  the  joint  property  of  husband  and  wife, 
the  husband  alone  can  bring  replevin  for  it.4     These 

1  Gilb.  RepL  123.  Bro.  Abr.  tit.  Repl.  pL  50.  Sid.  80. 
Arundel  v.  Trcvyll,  Rast.  Ent.  560.  Act  24th  Feb.  1834, 
§  28,  Pamph.  Laws  70.     M'Knight  r.  Morgan,  2  Barb.   171. 

*  Bull.  N.  P.  53.  F.  N.  13.  GO.  Bac.  Ab.  tit.  Repl.  G.  Seibert 
■o.  M'llenry,  6  Watts  301. 

3  Bro.  Baron  &  Feni.  pi.  85. 

4  Fairchild  w.  Chaustelleux,  8  Watts  412. 


112  THE    PARTIES    IN    REPLEVIN. 

decisions  rest  upon  the  ground  that  the  wife  has 
no  interest  whatever  in  the  subject  matter  of  the 
action.  And  the  reason  of  them  fails  in  Pennsyl- 
vania since  the  act  of  the  eleventh  of  April,  1848,1 
relating  to  the  rights  of  married  women. 

There  is  in  the  act  of  1848  no  appearance  of  an 
intention  to  change  the  rules  of  pleading,  as  applied 
to  the  relation  of  husband  and  wife.  It  would 
seem,  therefore,  the  safest  course,  in  all  actions 
concerning  the  wife's  estate,  to  join  the  husband.2 
The  husband  can  neither  release  nor  discontinue 
the  action.  If  the  wife  sue  in  her  own  name, 
advantage  can  only  be  taken  of  it  by  plea  in  abate- 
ment.2 The  husband  since  the  act  certainly  cannot 
sue  alone. 

Several  persons  cannot  join  in  one  replevin  for 
several  goods  where  the  property  is  several.3 

All  the  joint  owners  of  a  chattel  must  join.4 

1  Paraph.  Laws,  1848,  p.  536. 

2  Perry  v.  Boileau,  10  S.  &  R.  208.  Jameson's  Exs.  v.  Brady 
and  Wife,  6  S.  &  R.  466.  Cro.  Car.  69.  Hatchett  v.  Baddeley, 
2  W.  Black.  R.  1079.     Co.  Lit.  112,  a. 

3  Wilk.  Repl.  4.  Co.  Lit.  145.  Hart  v.  Fitzgerald,  2  Mass. 
Rep.  509. 

4  2  Saund.  116,  n.  2.  Decker  v.  Livingston,  15  Johns.  479. 
Bank  v.  Stubbs,  6  Mass.  422.  9  Mass.  427.  D'Wolf  v.  Harris, 
4  Mason  515.  M'Arthurs  v.  Lane,  3  Shep.  245.  Low  u.  Martin, 
18  111.  286. 


THE    PARTIES    IX    REPLEVIN.  113 

A  tenant  in  common,  or  joint  tenant,  or  partner, 
cannot  maintain  replevin  against  his  co-tenant1  or 
co-partner  for  taking  the  common  property. 

A  mere  servant  who,  as  such,  has  charge  of 
goods  cannot  maintain  replevin.2 

A  father  is  the  natural  guardian  of  his  children, 
and  when  they  have  no  other  guardian  may  main- 
tain replevin  for  their  personal  property.5 

In  general,  any  one  in  possession  of  the  goods 
may  be  made  defendant.  If  goods  are  taken  by  A. 
at  the  command  of  B.,  the  replevin  may  be  againsl 
both  or  either.4  Replevin  will  not  lie  against  any 
sheriff,  naval  officer,  lieutenant  of  the  city  of  Phila- 
delphia, or  of  any  county  constable,  collector  of  the 
public  taxes,  or  other  officer,  for  goods  taken  or 
detained  by  them,  acting  in  their  several  offices 
under  the  authority  of  the  state  f  not  so  in  Massa- 

1  Barnes  v.  Bullett,  L5  Pick.  11.  Wills  u.  Noyes,  12  Pick. 
324.  Reeves  u.  Morris,  2  Jebb  &  Symes,  344.  Co.  Lit.  199  b. 
Whitesides  v.  Collier,  7  Dana  283. 

*  Harris  r.  Smith,  3  S.  &  R.  20. 

s  Smith  v.  Williamson,  1  liar.  &  Johns.  147. 

■  Gilb.  Repl.  1 62. 

5  Act  of  April,  1779,  1  Sm.  Laws  470.  Pott  v.  Olwine, 
7  Watts  17::.    Shaw  r.  Levy,  IT  S.  &  R.  '•''•,- 


114  THE   PARTIES   IN   REPLEVIN. 

chusetts.1  Replevin  lies,  however,  after  sale, 
against  the  vendee  of  the  sheriff  or  other  officer.2 
But  the  action  cannot  be  maintained  against  the 
marshal  for  goods  held  by  him  under  a  writ  from 
a  federal  court.3 

1  Ilsley  v.  Stubbs,  5  Mass.  280.     See  Appx.  Mass.  Stat. 

2  Shearick  v.  Huber,  6  Binn.  2.     Lamb  v.  Johnson,  10  Cush- 
ing  126. 

3  Freeman  v.  Howe,  24  Howard  450.    Buck  v.  Colbuth,  3 
Wallace  335.    Booth  v.  Ableman,  18  Wis.  495. 


CHAPTER   V. 


OF    THE    DECLARATION. 


The  defendant  heaving  appeared,  the  plaintiff 
must  file  his  declaration,  subject  as  to  time,  &c, 
to  the  same  rules  of  court  which  govern  other 
actions.  If  the  goods  were  taken  as  a  distress,  the 
place,  in  that  case,  being  material  and  traversable,1 
and  a  new  assignment  not  being  allowed  in  reple- 
vin,2 the  plaintiff  must  state  the  place  of  taking 
within  the  town  or  county,  accurately  in  his  decla- 
ration. If  the  goods  were  taken  in  a  dwelling- 
house  in  the  city,  he  should  state  the  street  and 
number  of  the  house;  if  in  a  store  or  factory,  it 
should  be  so  stated,  and  the  locality  given ;  if  on 
a  farm,  that  statement  should  be  accompanied  by 
some  words  of  description  by  which  the  place  may 
be  readily  identified,  such  as  the  road  upon  which 

1  Gilb.  Repl.  124.    Ward  v.  Laville,  Cro.  Bliz.  896.     Hill  u. 

Bunning,  1  Sid.  20.  Ward  v.  Lakin,  Moore  678.  1  Saund. 
Rep.  347,  n.  1.  2  Saund.  PL  &  Ev.  761.  Gardiner  v.  Humphrey. 
10  Johns.  53.     Jackson  u.  Rogers,  11  Johns.  33. 

'  Potter  v.  North,  1  Saund.  Rep.  347.     Cockley  v.  Pagrave, 
Freeman  238. 


116  Or    THE   DECLAKATION". 

it  is  situate,  and  its  name,  if  it  has  one.1  When 
the  action  is  not  for  goods  distrained,  but  is  founded 
on  a  claim  of  property,  it  will  be  sufficient  to  lay 
the  taking  in  the  county,  as  in  this  case  the  place 
is  no  longer  material.2  The  venue  may  be  laid 
wherever  the  goods  are,  as  they  may  be  considered 
to  have  been  taken  at  any  place  into  which  the 
defendant  may  at  any  time  have  carried  them.3 
The  declaration  must  allege  the  chattels  to  be  the 
property  of  the  plaintiff.4 

By  the  statutes  of  Wisconsin,  where  the  action 
is  for  goods  distrained  for  any  cause,  it  shall  be 
laid  in  the  county  in  which  the  distress  was  made: 
in  other  cases  the  action  shall  be  laid  and  tried  in 
like  manner  as  actions  of  trespass  for  injuries  to 
personal  property.5 

In  Tennessee,  if  the  goods  cannot  be  found,  the 
defendant  may  declare  in  trover  or  detinue  without 
issuing;  a  new  writ.6     This  would  seem  to  be  a 


*& 


1  Potten  v.  Bradley,  2  Moo.  &  P.  78.     See  Kenny  v.  Simpson, 
Jebb  &  Bourke  IT. 

2  Muck  v.  Folkrod,  1  Browne  60. 

3  Walton  v.  Kersop,  2  Wils.  354.     Anon.  2  Mod.  199. 

4  Pattison  v.  Adams,  7  Hill  126.     Hill  v.  Denio,  7  Hill  426. 

5  Statutes  of  Wisconsin  271. 

6  Act  15th  January,  1846. 


OF    THE    DECLARATION.  117 

substitute  for  the  declaration  in  the  detinel  in  use 

elsewhere.     The  same  law  prevails  in  Illinois.1 

The  declaration  in  Iloskins  v.  Robins  and  Others, 
2  Saunders  320,  contains  an  averment  of  the  price 
or  value  of  each  article  taken,  on  which  Mr. 
Williams,  the  annotator,  remarks:  "  It  is  not  usual 
to  insert  the  price  of  the  cattle  or  goods  taken,  in 
a  declaration  in  replevin,  and  the  reason  seems  to 
be,  because  if  the  plaintiff  obtains  a  verdict,  he  is 
only  entitled  to  damages  for  the  wrongful  taking 
and  costs,  but  not  to  the  value  of  the  goods  taken, 
as  he  is  in  trespass,  for  they  were  delivered  to  him 
when  replevied."  This  is  manifestly  an  insufficient 
reason  even  in  England,  where  we  have  seen  the 
case  may  go  on,  and  a  recovery  be  had  in  damages 
for  the  value  of  the  property,  if  the  sheriff  is  pre- 
vented from  delivering  it.2 

The  practice,  as  stated  by  Mr.  Williams,  would 
no  doubt  be  sustained,  where  the  goods  have  been 
delivered  to  the  plaintiff.  Where  this  is  not  the 
case,  the  value  must  be  stated.  In  the  United 
States,  indeed,  in  all  the  modern  British  precedent  s, 
the  value  is  inserted,  not  of  each  individual  article, 
but  in  the  aggregate,  as  in  the  forms  in  the  ap- 
pendix. 

1  Dart  r.  Howe,  20  111.  212. 

2  Ante,  p.  54. 


118  OP    THE   DECLARATION". 

The  declaration  should  contain  a  description  and 
enumeration  of  all  the  articles  taken,  or  intended 
to  be  replevied.1  The  strictness  of  the  old  rule  on 
this  subject  is  now  somewhat  modified,  and  it  is 
held  that  certainly  to  a  general  intent  is  sufficient, 
particularly  after  verdmt.2  Thus,  in  a  case  in 
which  the  declaration,  among  other  things,  was  for 
a  lot  of  sundries,  the  defendant  pleaded  property ; 
and  when  the  sheriff  came  to  replevy  the  lot  of 
sundries,  gave  a  property  bond  for  them,  and  re- 
tained possession.  The  defendant  assigned  for 
error  that  this  description  in  the  declaration  was 
too  general — Judge  Rogers  says  :  "  The  declara- 
tion, in  this  case,  would  undoubtedly  have  been  ill 
upon  demurrer;  but  then  upon  the  error  being 
pointed  out,  the  court,  under  our  act  of  assembly, 
would  have  given  leave  to  amend."  "How  can 
the  defendant  now  say  that  he  does  not  know  what 
the  plaintiff  meant  by  a  lot  of  sundries,  after  he 
has  claimed  property  in  them,  to  the  sheriff,  and 
on  the  records  of  the  court,  and  after  he  has  re- 
tained, and  has  now,  the  possession  of  the  very 
articles  for  which  this  suit  is  brought.     But  it  is 

1  Pope  v.  Tillman,  1  Moore  3S6.  7  Taunt.  642.  More  v. 
Clypsam,  Aleyn  33.  Snedeker  v.  Quick,  6  Halst.  179.  Sander- 
son v.  Marks,  1  Har.  &  Gill.  252. 

2  Warner  v.  Aughenbaugh,  15  S.  &  R,  1.  Wilson  v.  Grey, 
$  Watts  38.     Taylor  v.  Wells,  2  Saund.  74,  n.  1. 


OF    TJIE   DECLARATION.  119 

said,  the  description  must  be  so  certain,  that  the 
sheriff  can  tell  how  to  make  deliverance  of*  the 
property.  This,  however,  will  not  avail  the  defen- 
dant ;  for  the  sheriff  is  not  bound  to  redeliver,  un- 
less the  goods  be  shown  to  him  by  the  party ;  and 
in  case  of  a  defendant,  it  has  been  ruled  to  be  a 
good  return  to  say,  Null  us  venit  ex  parte  defen- 
dentis  ad  ostendendum  bona  et  catalla."'1  And  if 
the  defendant  avows  the  taking,  in  the  place  named, 
it  cures  the  defect  in  the  declaration.2 

If  standing  corn  is  replevied,  it  should  be  de- 
scribed as  follows  :  "In  a  certain  field  there,  called 

,  took  the  corn  of  the  said  plaintiff,  to  wit, 

acres  of  standing  corn  then  and  there  grow- 
ing, and  being  of  great  value,  to  wit,  of  the  value, 
&c."3  If  fixtures  be  taken,  they  are  well  de- 
scribed, according  to  Chitty,4  as  goods,  chattels, 
and  effects.  "When  it  can  be  conveniently  done, 
the  better  way  is  to  name  the  article. 

The  declaration  in  England,  and  wherever  the 
law  is  not  changed  by  statute,  charges  the  de- 

1  Warren  v.  Anghenbangh,  15  S.  &  R.  11.      Kempster  v. 
Nelson,  2  Wheat.  Sel.  913.     2  Saund.  74,  a,  note  1. 

2  Banks  v.  Angell,  3  Nev.  &  P.  94. 

1  2  Chitty  PI.  844.     See  Appendix,  general  forms  of  narr. 
4  2  Chitty  PL  844.     Pitt  v.  .Shew,  4  B.  &  A.  20G.    Niblet  <: 
Smith,  4  T.  R.  504. 


120  OF   THE   DECLARATION. 

fendant  with  having  taken  the  goods  of  the  plain- 
tiff, and  unjustly  detained  them  against  sureties 
and  pledges.1  If  the  goods  have  been  taken  in  two 
or  more  places,  it  ought  to  appear  what  number 
have  been  taken  in  each  f  property  not  mentioned 
in  the  writ  should  not  be  included,3  and  the  dam- 
ages claimed  should  be  stated,4  and  when  the  gist 
of  the  action  is  the  unlawful  detention,  it  is  not 
necessary  that  a  demand  and  refusal  before  bring- 
ing the  action  should  be  alleged.5  Leave  to  amend 
will  be  given  as  in  other  cases.6 

Declarations  in  replevin  are  either  in  the  detinuit, 
or  in  the  detinet,  or  both  forms  may  be  joined. 
"Where  the  goods  have  been  delivered  to  the  plain- 
tiff in  the  replevin,  the  declaration  is  in  the  detinuit ; 
where  the  goods  are  eloigned,  or  for  any  other 
cause  are  not  delivered  by  the  sheriff  to  the  plain- 
tiff, it  is  in  detinet,  and  complains  that  the  de- 
fendant took  the  chattels  and  detains  them  ;  where 
part  of  the  goods  are  delivered,  and  part  not,  the 

1  Evans  v.  Brander,  2  H.  Black.  541. 

2  Littleton's  Rep.  37. 

3  Sanderson  v.  Marks,  1  Harris  &  Gill  252. 

4  Faget  v.  Brayton,  2  Har.  &  J.  350. 

5  Seaver  v.  Dingley,  4  Greenleaf  306. 

6  Garner  v.  Anderson,  1  Str.  11.     Warner  v.  Aughenbaugh, 
15  S.  &  R.  10. 


OF    THE   DECLARATION'.  llM 

two  forms  are  combined.1  Where  there  arc  sepa- 
rate writs  in  the  cepit,  and  in  the  detinet,  as  is  the 
case  in  Wisconsin,  and  was  formerly  the  case  in 
New  York,  the  declaration  must  conform  to  the 
writ. 

Sometimes  when  the  plaintiff  in  replevin  is  a 
tenant  who  has  not  paid  his  rent,  and  whose  prin- 
cipal object  in  bringing  the  action  is  to  gain  time, 
he  strives  to  embarrass  the  landlord  by  taking  no 
further  steps  in  his  cause,  and  paying  no  regard  to 
the  defendant's  rule  on  him  to  declare — the  pro- 
per course  in  such  case  is  to  take  judgment  by 
default  for  want  of  a  declaration,  but  as  the  de- 
fendant in  such  a  case  is  in  fact  the  actor  or  plain- 
tiff, being  the  party  who  is  seeking  to  recover 
money ;  he  will  of  course  not  be  satisfied  with  a 
judgment  by  default.  His  most  expeditious 
course  is  to  file  a  suggestion  in  the  nature  of  an 
avowry  by  which  he  will  inform  the  court  that  he 
distrained  the  goods  in  question  for  rent  due,  and 

1  Com.  Dig.  tit.  rieader,  3  K.  10.  "  If  the  cattle  taken  are 
returned,  the  declaration  shall  say,  quare  cepit,  &c,  et  ea 
detinuit  contra  vad.  et  pleg.  quousque,  &c. ;  if  they  are  not  re- 
turned, it  shall  be  quare  cepit,  &c,  et  adhuc  detinet  contra 
vad.  et  pleg,  omitting  quousque,  &c.  So  if  only  part  are 
returned,  it  shall  say,  as  to  that  detinuit  quousque,  and  for  the 
residue,  adhuc  detinet."     See  Appendix. 


122  OF    THE    DECLARATION. 

in  arrear  from  the  plaintiff  to  the  defendant  for 
certain  premises,  describing  them,  stating  the  rent, 
and  how  much  was  due  at  the  time  of  the  distress, 
that  it  still  remains  due  and  for  it  the  distress  was 
made,  and  pray  the  court  for  a  writ  of  inquiry  of 
damages.  This  is  of  course  given,  and  then  having 
ascertained  the  amount  to  which  the  judgment 
entitles  him,  the  defendant  may  either  have  an 
execution  at  once  against  the  plaintiff,  or  may  take 
an  assignment  of  the  bond  from  the  sheriff  and  sue 
on  it.1 

1  See  Appendix. 


CHAPTER  VI. 

OF   THE    PLEAS    IX    REPLEVIN. 

The  action  of  replevin  is  in  some  respects  ano- 
malous. In  certain  positions  of  the  pleadings  the 
plaintiff  and  defendant  change  places ;  and  the 
rules  which,  in  other  actions,  govern  the  plaintiff, 
here  control  the  defendant,  and  vice  versa.  There 
is  nothing,  however,  in  this,  which  exempts  the 
parties  from  an  observance  of  the  common  rules, 
or  excuses  the  absence  of  proper  pleadings  in  re- 
plevin. It  was  formerly  held  in  the  supreme  court 
of  Pennsylvania,  that  even  after  a  trial  on  the 
merits,  the  want  of  a  plea  was  fatal,  and  it  was 
said  that  nothing  would  cure  its  absence.1  This 
is  no  longer  the  law,  and  it  is  now  held,  that  an 
omission  to  compel  the  opposite  party  to  perfect 
the  pleadings  beforehand,  ought  to  be  considered, 
what  it  is  in  justice  and  truth,  a  tacit  agreement 
to  waive  matters  of  form,  and  try  the  cause  on  it> 
merits;  just  as  going  to  trial  on  a  short  plea  is  ;i 

1  Lecky  v.  M'Dermot,  5  S.  &  K.  331. 


124       OP  THE  PLEAS  Itf  REPLEVIN. 

waiver  of  the  right  to  demand  a  plea  in  full  form.1 
So  also  informalities  in  an  avowry  are  cured  by- 
going  to  trial.2  But  where  an  objection  is  made; 
there  is  no  room  for  presumption  of  any  kind,  and 
it  would  be  against  right  and  justice  to  infer  an 
agreement  to  waive  form,  in  opposition  to  the 
protestation  of  the  party  against  the  trial.3 

The  writ  in  Pennsylvania  and  Maryland  does 
not  abate  by  the  death  either  of  plaintiff4  or  defend- 
ant.5 In  New  York,  prior  to  the  new  code,  the 
suit  abated  by  the  death  of  the  plaintiff,  and  in 
such  case  the  defendant  had  no  remedy  on  the  bond, 
but  he  might  retake  the  goods.6  In  Massachusetts 
the  action  does  not  survive  the  death  of  the  de- 
fendant.7 

There  is  a  difference  between  pleas  in  abatement 
in  replevin,  and  in  other  actions.     In  other  actions 

1  Thomson  v.  Cross,  16  S.  &  R.  350.  Sauerman  v.  Weck- 
eriey,  17  S.  &  R.  116.     Baxter  v.  Graham,  5  Watts  418. 

2  Kessler  v.  M'Conachy,  1  Rawle  435. 

3  Bratton  v.  Mitchell,  5  Watts  10. 

4  Act  13th  April,  1791.  Reist  v.  Heilbrenner,  11  S.  &  R, 
131.     1  Dorsey's  Laws  Md.  463,  Act  1801,  ch.  14,  §  38. 

5  Kcite  v.  Boyd,  16  S.  &  R.  300. 

6  Barkle  v.  Luce,  6  Hill  558.  See  Weber's  Exs.  v.  Underhill, 
19  Wend.  447. 

7  Petts  v.  Hale,  3  Mass.  321.     Mellan  v.  Baldwin,  4  Mass.  480. 


OP  THE  PLEAS  IN  REPLEVIN.       125 

pleas  in  abatement  go  merely  to  the  form  of  the 

writ;  but  in  replevin,  as  the  properly  is,  in  tin' 
'first  instance,  delivered  to  the  plaintiff,  it  is  not 
enough  for  a  plea  in  abatement  to  show  that  the 
wril  was  improperly  issued  and  should  be  quashed: 
this  will  not  put  the  defendant  in  statu  quo.  The 
plea  in  abatement  must  go  further,  and  show  the 
defendant  to  be  entitled  to  a  return  of  the  property.1 

Chief  Baron  Gilbert  says,  in  replevin  "pleas  in 
abatement,  differ  from  pleas  in  bar  only  in  this; 
that  in  abatement  they  do  not  avow  or  acknow- 
ledge the  caption  and  detention,  which  is  the  gist 
of  the  action  ;  but  they  must  go  so  far  as  to  entitle 
the  defendant  to  a  delivery,  or  else  they  do  not 
take  away  the  force  and  effect  of  the  writ  of  reple- 
vin, which  is  always  executed  by  the  deliver 
The  well-known  rule,  that  a  defence  which  denies 
that  the  plaintiff  has  any  cause  of  action  at  any 
time,  must  be  pleaded  in  bar,  while  matter  which 
merely  defeats  the  present  proceeding  must  be 
pleaded  in  abatement,  it  would  seem  from  many 
authorities,  both  ancient  and  modern,  does  not  in 
all  instances,  extend  to  the  action  of  replevin. 
Thus,  it  is  held  that  property  either  in  the  defend- 

1  Gilb.  Repl.  126. 

2  Gilb.  Repl.  126,  1:27. 


126       Or  THE  PLEAS  IN  REPLEVIN. 

ant  or  in  a  stranger,  may  be  pleaded  either  in  bar 
or  in  abatement,  and  without  conusance.1 

The  only  reason  I  have  met  with  for  this  distinc- 
tion, is  given  in  the  old  edition  of  Gilbert  on 
Replevin  (but  omitted  in  the  later  ones),  where 
he  says,  "The  defendant  may  plead  property  in 
himself  in  abatement ;  for  by  such  plea  he  doth  not 
deny  or  confess,  and  avoid  the  caption,  and  there- 
fore it  is  not  a  bar ;  but  only  shows  that  the  plaintiff 
hath  not  a  right  to  a  deliverance ;  and  by  showing 
that  the  goods  ought  to  be  returned  to  the  defend- 
ant on  such  abatement,  as  they  were  before  the  writ 
was  taken  out."2  However  satisfactory  this  might 
have  been  in  England,  it  cannot  be  received  as  a 
sufficient  reason  here,  where  every  unlawful  deten- 
tion is  held  to  be  a  caption,  and  of  course  is  denied 
by  the  plea  of  property.3  Besides  the  plea  of  pro- 
perty wants  another  characteristic  of  a  plea  in 
abatement,  as  it  gives  no  better  writ  to  the  plain- 
tiff.    Authority,  however,  seems  to  have  settled 

1  1  Chitty  Plead.  481.  2  Lev.  92.  Presgrave  v.  Saunders, 
1  Salk.  5.  Butcher  v.  Porter,  1  Salk.  94.  Harrison  v.  M'ln- 
tosh,  1  Johns.  380.  Wilson  v.  Gray,  8  Watts  85.  Rogers  v. 
Arnold,  12  Wend.  30.    Pe  Wolf  v.  Harris,  4  Mass.  515. 

2  Gilb.  Repl.  128. 

3  Mackinley  v.  M'Gregor,  3  Whart.  369. 


OF  THE  PLEAS  IX  REPLEVIN'.       127 

that  property  is  a  good  defence  either  in  bar  or  in 
abatement. 

If  the  plea  is  property  in  the  plaintiff  and  J.  S., 
then  the  plea  is  in  abatement  of  the  replevin,  as  it 
is  in  other  actions;  for  though  it  admits  a  right  of 
deliverance  in  the  plaint  ill',  yet  it  does  not  allow  it 
by  a  writ  under  the  present  form  ;  but  gives  a  bet- 
ter writ  to  be  brought  by  the  plaintiff  and  J.  S.  But 
here  the  defendant  ought  to  make  a  conusance; 
because,  this  plea  not  disaffirming  the  property,  it 
leaves  a  right  in  the  plaintiff  to  have  his  beasts, 
unless  such  conusance  be  made.1  Cepit  in  alio 
loco  with  conusance  is  a  good  plea  in  abatement. 
Thus,  if  one  declare  of  a  caption  in  Blackacre,  and 
the  defendant  pleads  in  abatement  that  he  took 
them  in  Whiteacre  absq.  hoc  that  he  took  them  in 
Blackacre,  this  will  abate  the  count  under  that 
i<  >rm.  But  then  he  must  make  conusance ;  because, 
not  disaffirming  the  plaintiff's  title  to  the  chattel-, 
he  leaves  the  plaintiff  a  right  to  retain.  In  this 
and  c\cr\  other  ease  in  abatement,  where  the  pro- 
perty is  not  disaffirmed  to  be  in  the  plaint i if,  the 
defendant  must  make  avowry  or  conusance  of  a 
just  cause  of  return;  for  otherwise  he  does  not 
destroy  the  force  and  effect  of  the  writ,  by  which 

1  (iilb.  Repl.  128. 


128  OF   THE   PLEAS   IX   EEPLEVIN. 

the  deliverance  was  made,  but  leaves  the  plaintiff 
a  right  to  retain  his  own  property.1  The  avowry 
or  conusance  cannot  be  denied,  but  only  the  plea ; 
for  to  traverse  the  conusance  would  be  a  discon- 
tinuance.2 

Property  in  defendant  or  a  stranger,  and  cepit 
in  alio  loco,  also  property  in  plaintiff  and  defendant, 
may  be  pleaded  in  bar  as  well  as  abatement.3     In 
Presgrave  v.  Saunders,*  Holt,  Chief  Justice,  said, 
he  remembered  to  have  heard  Hale  make  the  dif- 
ference, that  if  property  be  pleaded  in  defendant, 
it  may  be  either  pleaded  in  bar  or  in  abatement ;  if 
in  a  stranger,  only  in  abatement :  but  that,  upon 
great  deliberation,  it  had  been  held  since,  that  there 
was  no  difference  at  all ;  for  both  might  be  pleaded 
in  bar,  according  to  2  Oo.  519.     It  must  be  pleaded 
with  a  special  traverse.5     Cepit  in  alio  loco  is  not  a 
good  plea,  if  the  defendant  or  his  bailiff  has  ever 
had  the  property  in  the  place  mentioned  in  the  de- 
claration, though  it  be  merely  on  their  way  to  the 
pound.     And  if  he  had  them  there,  but  took  them 

1  Gilb.  Repl.  128,  9.     Cross  v.  Bilson,  6  Mod.  102,  n. 

2  Cross  v.  Bilson,  6  Mod.  102.     1  Wras.  Saund.  311,  n.  1. 

3  Wilk.  Repl.  47,  50.     Wilson  v.  Graj',  8  Watts  25. 
*  6  Mod.  81. 

5  Chambers  v.  Hunt,  N.  J.,  3  Harrison  339.     Rogers  v.  Ar- 
nold, 12  Wend.  30.     Anderson  v.  Tallcott,  1  Grilman  3G5, 


OF    THE   PLEAS   IN   REPLEVIN.  120 

damaged  feasant  in  another  place,  he  should  plead 
thai  specially.1 

Properly  speaking,  there  is  no  general  issue  in 
replevin.2    The  general  issue  is  so  called  because 
the  issue  that  it  tenders  involves  the  whole  de- 
cl a  rat  ion,  or  the  principal  part  of  it,3     The  declara- 
tion in  replevin,  as  we  have  seen,  alleges  that  the 
defendant    "took   certain   cattle   or   goods  of  the 
plaintiff,  in  a  certain  place  called,  &c,  and  unjustly 
detained  or  detains  them,"  as  the  case  may  be. 
There  is  no  plea  known  in  this  action  which  alone 
puts  in  issue  the  whole  of  the  above  allegations. 
In  the  old  books  non  cepit  is  called  the  general 
issue  in  replevin.4     This  plea  merely  states  that 
the   defendant   "did  not  take  the  said  cattle  or 
goods  in  manner  and  form  as  alleged,"  not  tra\ 
ing  the  material  allegation  of  the  property  being 
in  the  plaintiff. 

The  caption  and  detention  only  are  in  issue,  and 
not  the   property.     In  this,  replevin  differs  from 

1  1  Wms.  Samid.  347,  n.  1.  Abercrombie  v.  Parkhurst,  2  B. 
&  P.  480.  Maltravers  v.  Fosset,  3  Wils.  295.  Walton  v. 
Kersop,  2  Wils.  354.     Chitty  PL  104C. 

-  Wilk.  Repl.  40. 

s  Stephens  PL  112. 

*  Gilb.  Kepi.  130.    Stephens  PL  175. 


130       OF  THE  PLEAS  IX  REPLEVIN". 

trespass  ;  for  in  trespass,  where  the  general  issue  is 
not  guilty,  the  defendant  may,  on  evidence,  show 
property  in  himself,  because  he  cannot  be  guilty 
of  trespass  in  taking  his  own  goods;1  but  in  reple- 
vin, upon  non  cepit,  the  property  by  the  plea  is 
admitted  to  be  in  the  plaintiff,1  and  therefor  is  not 
in  question  at  all ;  but  whether  the  defendant  took 
the  goods  mentioned  in  the  declaration.  And  he 
cannot  be  admitted  on  the  trial  to  show  whose  the 
property  was,  because  he  has  put  it  in  issue  only, 
before  the  jury,  whether  he  took  the  goods  or  not, 
and  not  whose  they  were.1  In  Mackinley  v. 
IVrGregoiy  Judge  Rogers  uses  the  following  lan- 
guage: "By  the  plea  of  non  cepit,  the  caption  and 
detention  only  are  put  in  issue,  and  not  the  pro- 
perty which  is  admitted.  The  only  point  to  which 
the  evidence  applies  under  that  plea,  is,  whether 
the  defendant  took  the  goods  or  not,  or  whether  if 
he  came  rightfully  into  possession,  he  has,  and 
continues  wrongfully  to  detain  them."  "  In  point 
of  form,  it  denies  the  taking  only,  and  is  pleaded 
without  any  suggestion  for  a  return,  and  conse- 
quently there  cannot  be  judgment  for  a  return,  on 

1  Gilb.Kopl.130.  Vickeryv.  Sherburne,  20  Maine  34.  Holmes 
v.  Wood,  6  Mass.  3.  Trotter  v.  Taylor,  5  Blackford  431.  Whet- 
well  v.  Wills,  24  Tick.  25.  Ely  o.  Ehle,  3  Comst.  506.  Carrol 
c.  Harris,  19  Ark.  23T. 

8  3  Whart  398. 


OF    THE   PLEAS    1\     REPLEVIN.  131 

that  plea.  Bui  although  it  denies  the  taking  only, 
yet  on  thai  plea  the  unlawful  detention  ma^  also 
be  inquired  into;  and  this  has  been  the  invariable 
and  constant  practice,  not  only  in  England,  bul  in 
this  state,  from  the  first  settlement  of  the  province." 

The  defendant  may  plead  in  justification,  both 
where  he  disclaims,  and  where  he  allows  property 
in  the  plaintiff.  Thus,  if  the  defendant  acknow- 
ledges the  caption,  and  claims  property  in  himself; 
this  is  a  good  bar,  because  it  confesses  the  caption, 
which  is  the  gist  of  the  action,  but  avoids  the  in- 
justice thereof,  by  showing  that  he  had  a  right  to 
take  them;  and  this  not  only  will  abate  the  writ 
of  the  plaintiff,  whereby  the  deliverance  was  made, 
but  also  destroy  all  right  of  complaint  for  such 
caption  and  detention;  and  therefore  goes  in  bar 
to  the  action,  and  consequently  gives  a  return 
without  conusance  pro  retorno  habendo.1 

If  the  defendant  confesses  the  caption,  and  pleads 
property  in  J.  S.,  this  is  in  bar  of  the  action  as 
well  as  in  abatement  of  the  writ ;  for  this  not  only 
shows  that  the  plaintiff  had  no  right  to  a  deliver- 
ance upon  the  writ,  but  also  that  he  lias  no  cause 
to  complain  of  t he  caption  and  detention  against 

1  (Jill..  Repl.  132.     6  Mod.  81. 


132       OF  THE  PLEAS  IN   REPLEVIN. 

his  pledges,  which  is  in  bar  of  the  action.  And 
this  is  not  only  a  justification  to  cover  the  de- 
fendant from  damages,  but  for  the  return  of  the 
beasts  ;  because  he  doth  not  admit  property  in  the 
plaintiff,  but  disaffirms  it ;  and  therefore  the  beasts 
ought  to  come  back  to  the  defendant,  who  ought 
to  retain  the  beasts  against  every  one  but  J.  S.1 
And  a  plea  that  the  property  in  dispute  is  in  the 
succession  of  A.  and  not  the  property  of  the  plain- 
tiff, without  naming  the  persons  in  the  succession 
of  A.,  has  been  held  good  on  demurrer.2 

Justifications  that  affirm  property  in  the  plain- 
tiff, cover  the  defendant  from  damages  only,  because 
the  plaintiff  is  entitled  to  his  beasts  or  chattels,  as 
having  property  in  them;  and  the  defendant  in 
such  pleas  not  making  title  to  the  beasts  or 
chattels  as  a  pledge  to  answer  any  demand,  he 
ought  not  to  have  the  beasts  or  chattels  back,  but 
may  cover  himself  from  the  damages  only  for  the 
caption.3 

Thus  (to  cite  an  old  example),  if  the  lord  dis- 
trained for  homage,  and  the  tenant  died,  and  his 

1  Gilb.  Kepi.  132.  Wilson  v.  Gray,  8  Watts  35.  Quiney  i>. 
Hall,  1  Pick.  357. 

2  Anderson  v.  Dann,  19  Ark.  G50. 

3  Gilb.  Repl.  132,  133. 


OF   THE  PLEAS   IX   REPLEVIN.  133 

executors  sued  replevin.  Here  the  defendant  mighl 
justify,  and  cover  the  damages,  because  the  disl  ress 
was  rightfully  taken  at  first,  though  by  the  death 
of  his  tenant,  he  could  no  longer  retain  it  a-  a 
pledge  for  his  homage,  and  therefore  could  not  he 
entitled  to  a  return;  because  the  homage  was  a 
service  to  be  performed  by  the  tenant  in  person, 
and  the  distress  being  to  compel  him  to  it,  could 
not  be  detained  longer  than  his  life;  therefore  the 
lord  must  have  distrained  the  heir  de  novo.1  Yet 
defendant  may  plead  property  in  himself,  and  in 
the  plaintiff,  and  if  found  for  him  it  will  entitle 
him  to  a  return  of  the  property,  because  having 
had  the  possession  of  it  coupled  with  an  interest, 
which  makes  his  case  the  stronger,  until  improperly 
deprived  thereof  by  the  sheriff,  under  the  plaintiff's 
writ,  which  he  had  no  right  to  use  for  such  purpose, 
he  has  a  right  to  be  placed  in  statu  quo,  that  is, 
restored  to  the  possession  of  the  property  as  the 
joint  owner  thereof.2 

The  defendant  may  plead  the  statute  of  limi- 
tations, if  there  is  one  in  force.  In  Pennsylvania, 
the  act  of  27th  March,  1713.  It  is  a  plea  in  bar, 
and  in  form  should  be  actio  non  acerevit  infra  sex 

1  Gilb.  Repl.  132,  133. 

2  Wilson  v.  Gray,  8  Watts  3G. 


134       OE  THE  PLEAS  IN  KEPLEVIN. 

annos.  In  a  case  in  Siderfin,  where  the  replevin 
was  for  a  mare  and  colt,  plea  not  guilty  of  the 
taking  aforesaid  within  six  years.  The  plea  was 
overruled,  because  it  gave  no  answer  to  the  unjust 
detention,  which  the  replevin  complains  of,  as  well 
as  the  caption ;  for  the  caption  may  be  just,  and 
the  detention  unlawful  :x  as  where  the  defendant 
eloigns  the  beasts,  or  drives  them  to  a  castle,  so 
that  the  sheriff  cannot  replevy  them  at  all,  this  is 
an  unlawful  detention,  however  just  the  caption 
might  have  been.  And  in  the  present  case,  it 
might  be  that  the  colt  was  foaled  in  the  pound,  and 
then  was  never  taken  by  the  defendant,  yet  it  may 
be  unlawfully  detained ;  and  though  he  might  not 
have  taken  it  within  six  years,  yet  he  might  have 
detained  it  until  the  day  of  purchasing  the  writ, 
and  that  detention  is  complained  of  by  the  writ, 
and  not  barred  by  the  statute. 

!Non  cepit,  and  property  in  defendant,  may  be 
pleaded  together ;  and  non  cepit,  property  in  a 
stranger,  and  other  pleas,  have  been  allowed  to  be 
pleaded  together.2 

It  is  not  a  good  plea  to  say  that  the  defendants 
had  a  lien  on  the  goods  and  chattels  in  the  declara- 

1  Gilb.  Repl.  131.    Arundel  v.  Trevil,  1  Sid.  81. 

2  Shuter  v.  Page,  11  Johns.  196.  Com.  Dig.  Plead.  E.  2. 
Whetwell  v.  Wells,  24  Pick.  25. 


OF    THE   PLEAS    IX    I:  F.l'LKY  I  \  .  L35 

tion  mentioned,  for  a  certain  sum,  for  freighl  and 
storage.  The  existence  of  a  lien  is  a  conclusion 
of  law  from  certain  facts  which  should  be  pleaded,1 
presenting  to  the  opposite  party  the  option  of  ad- 
mitting them,  and  contesting  their  Sufficiency  in 
point  of  law  by  demurrer,  or  of  denying  them  by 
a  proper  plea  to  the  country,  and  so  a  plea  which 
alleged  that  at  and  before  the  taking  declared  upon, 
one  P.  was  in  the  possession  and  apparent  owner- 
ship of  the  property  (certain  watches)  replevied 
with  the  knowledge  and  consent  of  the  plaintiff, 
and  that  being  so  in  possession  and  ownership  he 
pledged  them  to  the  defendant,  and  that  from  the 
time  of  pledging  until  the  delivery  to  the  sheriff 
the  defendant  retained  them  as  pawns  unredeemed, 
was  held  to  be  insufficient  by  the  district  court.2 

In  several  of  the  states,  not  guilty  is  made  the 
general  issue  by  statute,  and  puts  in  issue  the 
right  of  the  plaintiff  to  the  possession,  and  also  the 
wrongful  taking  and  detention;3  and  in  Tennessee 
any  special  matter  of  defence  may  be  given  in  evi- 
dence under  it. 

1  Weed  v.  Hill,  2  Miles  123. 

2  Hildeburn  v.  Nathans,  1  Phila.  Rep.  56T. 

3  Rev.  Stat.  Missouri,  1845,  921.  Stat.  Kentucky,  1842, 
503.  Tennessee  Act,  15th  January.  L846.  Rev.  Stat.  Mass., 
see  Appz. 


CHAPTER    VII. 


OF  THE  AVOWRY. 


The  defendant  is  not  bound  to  plead  in  con- 
fession and  avoidance,  and  go  for  damages.  He 
may  choose  to  avow  the  caption,  as  having  a  right 
to  the  property,  and  then  he  always  goes  for  a  re- 
torno  habendo.  "When  he  adopts  this  course,  he 
becomes  plaintiff  as  well  as  defendant.  Plaintiff, 
in  as  much  as  he  seeks  to  recover  the  goods ;  de- 
fendant, in  that  he  seeks  to  prevent  a  recovery  in 
damages  by  the  plaintiff.  And  so  the  plaintiff 
by  this  proceeding  is  made  defendant  as  well  as 
plaintiff;  plaintiff,  as  his  object  is  to  recover 
damages  for  the  taking ;  defendant,  as  he  seeks  to 
prevent  a  return  of  the  property  to  the  avowant. 
Avowries  are  either  for  rents,  services,  tolls,1  or 
for  damage  feasant,  and  for  heriots,  and  such  rights 
wherever  they  exist. 

The  avowry  or  cognizance  on  a  distress  for  rent 
is  the  most  usual,  as  well  as  the  most  important 

1  State  v.  Patrick,  3  Dev.  478. 


OF   THE   AVOWRY.  16  i 

form  of  this  class  of  pleas:  the  former  term  apply- 
ing" to  the  case  where  the  defendant  sets  up  right 
or  title  in  himself;  the  latter  being  used  where  he 
alleges  the  right  or  title  to  he  in  another  person, 
by  whose  command  he  acted.1 

The  avowry  or  cognizance  is,  in  fact,  a  declara- 
tion,2 several  may  be  filed  in  the  same  action,  and 
to  each,  several  pleas  in  bar  are  allowed  to  be 
pleaded;  for  though  not  within  the  words,  it  is 
within  the  meaning  of  the  statute  4th  and  5th 
Anne,  ch.  16.  But  it  seems  a  party  is  not  estopped 
by  his  avowry  from  pleading  at  the  last  moment 
property,  if  he  has  the  leave  of  the  court.'5 

If  the  defendant  took  the  chattels  in  his  own 
right,  he  should  in  terms  avow  the  act ;  but  if  as 
bailiff,  to  and  in  right  of  another,  he  should  use 
the  word  acknowledge.  The  mistake  of  the  one 
term  for  the  other  is,  however,  only  a  formal  defect. 
Where  both  are  made  defendants,  the  one  avows, 
and  the  other  makes  cognizance.  It  was  necessary 
at  common  law,  for  an  avowry  or  cognizance  for 
rent,  to  show  that  the  defendant,  or  some  person, 

1  Com.  Dig.  ricad.  3  K.  13,  14. 

2  Co.  Lit.  303,  a.     6  Mod.  103.     Wilk.  Repl.  G3.     Wright  v. 
Williams,  2  Wend.  G32.     Tike  v.  Gandall,  1)  Wend.  149. 

3  Ilellings  v.  Wright,  2  Harris  373. 


138  OF   THE   AVOWRY. 

from  whom  the  reversion  came  to  him,  was  seized, 
and  the  quantity  of  estate  that  he  was  seized  of, 
and  that  he  made  a  lease  to  the  plaintiff  for  life, 
or  years,  and  the  descent  or  grant  of  the  reversion 
to   the   defendant;   so   if  a  tenant  for  years  had 
let  the  estate  to  another  for  a  less  term,  at  a  certain 
rent,  and  distrained  for  the  rent,  it  was  incumbent 
upon  him,  in  his  avowry,  to  show  the  commence- 
ment of  his  estate,  by  laying  the  fee  in  some  person, 
who  granted  the  term,  and  then  deducing  the  title 
to  it  down  to  himself,  which  was  often  a  difficult 
and  impracticable  thing,  especially  in  long  terms 
for  years,  which  were  generally  assigned  to  a  great 
number  of  persons.1     Thus,  an  avowry  for  rent, 
stating  that  A.  habens  titulum,  demised  to  the  de- 
fendant, and  that  he  made  an  under  lease  to  the 
plaintiff,  was  held  bad  on  demurrer.2     It  was  not 
necessary   to   trace   the    title   from   its   remotest 
source.     The  law  was  satisfied  if  a  seizin  was  al- 
leged somewhere.     If  the  plaintiff  was  seized,  it 
was  enough.     If  not,  he   must  allege   the   latest 
previous  seizin,  and  thence  deduce  his  title.3 

To  remedy  these  inconveniencies,  the  statute  11 
Geo.  2d,  ch.  19,  was  passed,  which  reciting  in  the 

1  Wilk.  Repl.  54. 

2  Reynolds  v.  Thorpe,  2  Str.  796. 

3  2  Wms.  Sauncl.  284.     Wright  v.  Williams,  5  Cowen  338. 


OF    THE    AVOWRY.  139 

twenty-second  section,  "That  greal  difficulties  had 
often  arisen  in  making  avowries  or  conusance  upon 
distresses  for  rent,  quit  rents,  reliefs,  heriots,  and 
other  services,"  enacted  "that  it  should,  and  might 
be  Lawful  to  and  for  all  defendants  in  replevin  to 
avow  or  make  conusance  generally,  that  the  plain- 
tiff in  replevin,  or  other  tenant  of  the  lands  and 
tenements  whereon  such  distress  was  made,  en- 
joyed the  same  under  a  grant  or  demise,  at  such  a 
certain  rent  during  the  time  wherein  the  rent  dis- 
trained for  incurred,  which  rent  was  then,  and  still 
remained  due ;  or  that  the  place  where  the  distress 
was  taken,  was  parcel  of  such  certain  tenements, 
held  of  such  honor,  lordship,  or  manor,  for  which 
tenements  the  rent,  relief,  heriot,  or  other  service 
distrained  for,  was,  at  the  time  of  such  distress, 
and  still  ^remained   due;   without  further  setting 
forth  the  grant,  tenure,  demise,  or  title  of  such 
landlord  or  landlords,  lessor  or  lessors,  owner  or 
owners,  of  such  manor,  any  law  or  usage  to  the 
contrary  notwithstanding.     And  if  the  plaintiff  or 
plaintiffs  in  such  action  should  become  non-suit, 
discontinue  his,  her,  or  their  action,  or  have  judg- 
ment given  against  him,  her,  or  them,  the  defendant 
or  defendants  in  such  replevin  shall  recover  double 
costs  of  suit."    In  the  same  spirit  the  Pennsylvania 
act  of  the  21st  of  March,  1772,  was  passed  in  these 
words:  "Whereas  great  difficulties  often  arise  in 


140  OP   THE  AVOWRY. 

making  avowries*,  or  conusance  upon  distresses  for 
rent,  Be  it  enacted,  that  it  shall  and  may  be  lawful 
for  all  defendants  in  replevin  to  avow  and  make 
conusance  generally,  that  the  plaintiff  in  replevin, 
or  other  tenant  of  the  lands  and  tenements  whereon 
such  distress  was  made,  enjoyed  the  same  under  a 
grant  or  demise,  at  such  a  rent  or  service,  during 
the  time  wherein  the  rent  or  service  distrained 
for  incurred,  which  rent  or  service  was  then  and 
still  remains  due,  without  further  setting  forth  the 
grant,  tenure,  demise,  or  title  of  such  landlord  or 
landlords,  lessor  or  lessors,  any  law  or  usage  to  the 
contrary  notwithstanding ;  and  if  the  plaintiff  or 
plaintiffs,  in  such  action,  shall  become  nonsuit, 
discontinue  his,  her,  or  their  action,  or  have  judg- 
ment given  against  him,  her,  or  them,  the  defend- 
ant or  defendants  in  such  replevin  shall  recover 
double  costs  of  suit." 

The  English  statute  has  been  construed  to  ex- 
tend to  an  increased  rent  for  every  acre  of  the  land 
converted  into  tillage,1  and  to  furnished  lodgings  f 
but  not  to  a  rent  charge  or  annuity.3  They  are, 
however,  embraced  in  the  benefits   conferred  by 

1  2  H.  Black.  563. 

2  5  Bos.  &  Pul.  224. 

s  Lindon  v.  Collins,  Willes  Rep.  429.  Btdpit  V.  Clarke,  4 
Bos.  &  Pul.  56. 


OF    THE   AVOWRY.  11  1 

other  parts  of  the  Btatute.  Thus,  in  replevin  for 
goods  taken  as  a  distress  for  a  rent  charge,  if  the 
defendant  succeeds,  he  is  entitled  to  an  assignment 
of  the  bund  under  the  provisions  of  the  act.1 

The  Pennsylvania  aet  has,  however,  been  con- 
strued to  extend  to  ground-rents.-  Judge  Kennedy 
thus  expresses  himself:  "And  although  it  has  been 
decided  in  England  in  the  eases  of  Lindon  v.  Col- 
lins, Willes's  Rep.  429,  and  Bulpit  v.  Clarke, 4  Bos. 
&  Pull.  5(3,  that  a  rent  charge  is  not  embraced  by 
the  terms  of  the  22d  sect,  of  11  Geo.  2d,  eh.  19, 
which  is  somewhat  similar  in  its  terms  to  the  tenth 
section  of  our  act  of  1772,  because  the  grantor  of 
the  rent,  who  was  the  party  bound  to  pay  it,  en- 
joyed no  land  under  a  (/raid  or  demise  from  the 
grantee,  avIio  was  to  receive  the  rent,  which  seems 
to  be  requisite  in  order  to  bring  the  case  within 
the  terms  of  the  section;  yet  a  ground-rent,  seems 
to  come  very  fairly  within  its  terms,  for  the  tenant 
of  the  lot,  of  whom  the  rent  is  demanded  here,  lias 
occupied  and  enjoyed  it  under  a  giant  from  one 
under  whom  the  party  demanding  the  rent  claims 
as  assignee.  The  section  runs  thus  :  *  It  shall  and 
may  be  lawful  for  all   defendants  in  replevin,  to 

1  Shlh  v.  Hubbard,  2  Ding-.  349. 
Franciscus  v.  Eteigart,  -l  Watts  117. 
10 


142  OF    THE   AVOWRY. 

avow  and  make  conusance  generally,  that  the  plain- 
tiff in  replevin,  or  other  tenant  of  the  lands  and 
tenements  wheron  the  distress  was  made  enjoyed 
the  same  under  a  grant  or  demise,  at  such  a  rent  or 
service  during  the  time  wherein  the  rent  or  service 
distrained  for  incurred,  which  rent  or  service  was 
then  and  still  remains  due,  without  further  setting 
forth  the  grant,  tenure,  &c.'  Now,  although  the 
terms  of  this  section  may  not  literally  embrace 
what  was  called  a  rent  charge  before  the  passage 
of  the  statute  quia  emptores,  yet  it  is  evident  that 
ground-rents  may  well  be  included  in  the  terms 
used ;  and  as  the  evil  intended  to  be  remedied  was 
quite  as  great  in  cases  of  distress  for  them  as  for  any 
other  rents ;  we  ought  therefore,  to  conclude  that 
they  were  intended  to  be  embraced.  Indeed  this 
ouo-ht  to  be  the  conclusion,  unless  it  were  clear 
that  they  were  intended  to  be  excluded.  And 
upon  this  principle,  it  would  seem  that  the  statute 
of  11  Geo.  2d,  ch.  19,  has  been  held  in  some  of  its 
provisions  to  extend  to  a  rent  charge  as  well  as 
other  rents.  For  instance,  the  twenty-third 
section,  which  authorizes  sheriffs  in  the  execution 
of  writs  of  replevin  founded  upon  distresses  for 
rent,  to  take  bonds  with  sureties  of  the  plaintiff, 
and  to  assign  the  same  to  the  defendants  in  cases 
where  the  plaintiffs  fail  to  prosecute  their  writs 
successfully,  has  been  decided  to  embrace  the  case 


or  Tin:  avowry.  143 

of  replevin  sued  out  for  goods  distrained  on  accounl 
of  a  rent  charge,  and  that  the  sheriff  in  such  c 
may  take  a  bond  and  assign  it  as  in  case  of  a 
distress  for  any  other  species  of  rent.  Short  v. 
Hubbard,  2  Bing.  349.  So  in  practice,  the  first 
section  of  the  act  1772,  which  authorizes  the  sah 
of  goods  distrained  for  rent,  has  ever  been  con- 
sidered as  embracing  ground-rents." 

The  fact  that  the  statute  quia  emptores  was 
never  in  force  in  the  state  of  Pennsylvania,  seems 
to  have  been  overlooked  by  the  learned  judge  in 
this  case.  Afterwards,  in  deciding  the  case  of 
Ingersoll  v.  Sergeant,1  the  same  judge  mentions 
this  fact,  and  concludes  from  it  that  ground-rents 
in  Pennsylvania  are  not  rents  charge:  a  conclusion 
which  would  have  relieved  him  from  some  of  the 
embarrassment  which  he  appears  to  have  felt  in 
Franciscus  v.  Reigart. 

It  is  also  necessary  to  state  the  demise  under 
which  the  plaintiff  holds  as  lessee  or  assignee,  and 
to  name  the  real  tenant,-  and  the  amount  of  the 

1  1st  Wharton  33T. 

■  Banks  v.  Angell,  T  Adol.  &  Ell.  S43.     Innea  u.  Colqnhon, 

7  Bing.  265.     Smith  v.  Walton,  1   Moore  &  Scott  380.     In  the 

case  of  Krnsil  r.  Chambers,  5  Phila.  R.  64,  where  the  goods  of 

anger  which  had  been  taken  on  a  distress  for  rent  were 

replevied,   and  the  lessor  avowed  without  saying  who  was 


144  OF    THE   AVOWRY. 

rent,1  and  when  payable,  but  a  variance  as  to  the 
amount  of  the  rent  due  will  not  be  material,  if  the 
terms  of  the  holding  are  proved  as  laid.2  Though 
in  some  cases  it  is  said  that  this  is  true  only  when 
the  amount  laid  is  less  than  the  amount  proved, 
Waltman  v.  Allison,  10  Ban*  465 ;  but  see  Barr  v. 
Hughes,  8  Wright  516,  and  Phipps  v.  Boyd,  4  P. 
F.  Smith  344.  In  this  case  it  is  said  there  is  an 
inaccuracy  of  expression  by  the  court  in  Waltman 
v.  Allison.  According  to  Gilbert,  it  was  an  easy 
thing,  as  the  old  law  stood,  to  name  the  tenant,  as 
fines  were  paid  on  every  alienation,  and  the  alienee 
was  presented  by  the  next  homage.  But  when 
these  small  fines  for  alienation  were  not  gathered, 
nor  the  courts  regularly  kept,  the  lords  were  at  a 
loss  to  find  their  real  tenants,  and  consequently  to 
know  whom  to  avow  upon.3 

"Where  the  avowant  is  the  assignee  in  reversion 
of  part  of  the  demised  premises,  he  may  avow  as 

tenant.  The  district  court  said  it  was  enough  the  question 
was  whether  rent  was  owing  on  the  premises  when  the  disti'ess 
was  made,  and  not  of  the  person  who  owed  it. 

1  Cossey  v.  Diggons,  2  B.  &  A.  546.  Brown  v.  Sayce,  4 
Taunt.  320.  Tice  v.  Norton,  4  Wend.  6G3.  Philpott  v.  Dob- 
binson,  6  Bing.  104. 

2  Forty  v.  Imber,  6  East  434.  Harrison  v.  Barnby,  5  T.  R. 
248.    Johnstone  v.  Hudleston,  per  Bayley,  J.,  4  B.  &  C.  938. 

3  Gilb.  Repl.  134. 


OF    THE    AVOWRY.  1  io 

at  common  law,  stating  the  facts  special]}',  and 
leaving  the  apportionment  of  the  rent  to  be  made 
by  the  jury — or  he  may  avow  in  the  general  form 
given  by  11  Geo.  2d,  ch.  19,  §  22,  as  upon  a  holding 
at  a  certain  rent,  and  if  he  avow  under  the  statute 
for  the  entire  rent,  or  with  a  deduction  from  the 
entire  rent,  greater  or  less  than  the  proportion 
properly  belonging  to  his  interest  in  the  reversion, 
the  judge  at  nisi  prius  may  direct  the  avowry  to 
be  amended.1 

.The  statute  21st  Henry  8th,  ch.  19,  after  recit- 
ing that  as  well  the  noblemen  of  the  realm,  as 
divers  other  persons,  by  fines,  recoveries,  grants, 
and  secret  feoffments,  and  leases  made  by  their 
tenants  to  persons  unknown,  of  the  lands  and 
tenements  holden  of  them,  have  been  put  from  the 
knowledge  of  their  tenants,  upon  whom  they  should, 
by  order  of  the  law,  make  their  avowries  for  their 
rents,  customs  and  services,  to  their  great  losses 
and  hinderances,  enacted,  that  "wheresoever  any 
manor  lands,  tenements,  and  other  hereditaments, 
be  holden  of  any  manor,  person  or  persons,  by  rents, 
customs  or  services,  that  if  the  lord  of  whom  any 
such  manor  lands,  tenements  or  hereditaments  be 
so  holden,  distrain  upon  the  same  manors,  land-, 
or  tenements,  for  any  such  rents,  customs  or  ser- 

1  Roberts  v.  Swell,  1  Manning  &  Granger  577. 


146  OF    THE    AVOWRY. 

vices,  and  replevin  thereof  be  sued,  that  the  lord 
of  whom  the  same  lands,  tenements  or  heredita- 
ments, be  so  holden,  may  avow,  or  his  bailiff  or 
servant  make  conisance,  or  justify  for  taking  of 
the  said  distresses  upon  the  same  lands,  tenements 
or  hereditaments,  so  holden,  as  in  lands  or  tene- 
ments, within  his  fee  or  seigniory.  Alleging  in 
the  said  avowry,  conisance  and  justification,  the 
same  manors,  lands  and  tenements,  to  be  holden  of 
him,  without  naming  of  any  person  certain  to  be 
tenant  of  the  same,  and  without  making  any 
avowry,  justification  or  conisance,  upon  any  per- 
son certain.  And  likewise  the  lord,  bailiff  or  ser- 
vant, to  make  avowry,  justification  or  conisance, 
in  like  manner  and  form  upon  every  writ  sued  of 
second  deliverance." 

It  was  requisite  for  the  avowant  to  choose  be- 
tween this  statute,  and  the  statute  11  Geo.  2,  eh. 
19,  §  22,  for  he  was  not  allowed  to  frame  an  avowry 
under  both,  in  such  a  way  as  to  avoid  the  necessity 
as  well  of  setting  out  his  title,  as  of  naming  his 
tenant.  And  it  was  held  that  as  these  statutes 
dispensed  with  the  common  law,  one  or  other  must 
be  followed.  Thus  an  avowry  stating  that  J.  S. 
held  the  locus  in  quo  as  tenant  to  the  defendant, 
under  a  demise  thereof  by  A.  to  "W.  at  a  certain 
rent  for  a  term  not  expired,  J.  S.  being  assignee  of 


OF    THE    AVOWRY.  1  IT 

all  W.'s  estate  and  interest,  and  thai  renl  was  in 
arrear  from  J.  S.,  is  not  good,  either  by  virtue  "1' 
11  Cum,.  2d,  eh.  19,  §  22,  or  21  H.  8,  eh.  19,  or  by 
the  two  conjointly.  And  the  court,  by  Littledale, 
J.,  say,  The  object  of  the  statute  21  H.  8,  was  to 
avoid  the  inconvenience  arising  from  secret  assign- 
ments, which  prevented  the  Landlord  from  knowing 
how  he  ought  to  avow.  But  the  statute  requires 
the  landlord  to  avow  taking,  "  as  in  lands  or  tene- 
ments within  his  fee  or  seigniory,"  perhaps  it  may 
he  sometimes  unnecessary  to  aver  seizin,  as  in  the 
case  put  in  Roll.  Ahr.  oil  (Avowry,  A,)  where  it 
is  said,  "that  if  a  man  makes  a  gift  in  tail  render- 
ing rent,  he  may  avow  without  laying  any  seizin, 
because  the  reversion  gives  him  a  sufficient  privity, 
and  he  shall  count  upon  the  reservation."  The 
privity  shown  in  such  a  case  might  be  sufficient, 
without  any  allegation  of  seizin  ;  but  it  is  unneces- 
sary to  decide  that  point,  because  here  no  privity 
is  shown  between  A.  and  the  defendant.  The 
avowry  and  cognizance  is  therefore  bad  under  21 
II.  8, and  it  is  not  sustainable  under  11  Geo.  2,  ch. 
19;  for  that  requires  the  defendant  in  replevin  to 
allege  that,  the  plaintiff,  or  other  tenant,  held  under 
a  grant  or  demise,  or  that  the  place  was  parcel  of 
such  tenements,  as  there  stated,  which  is  not  done 
here.  And  without  this,  the  plaintiff  in  replevin 
cannot  know  how  to  plead.     Nor  can  the  avowry 


148  OF    THE    AVOWRY. 

and  cognizance  be  good  under  the  two  statutes 
taken  together;  for,  if  that  were  so,  a  defendant  in 
replevin  might,  in  his  pleading,  leave  out  both 
tenant  and  landlord.  Of  two  statutes  dispensing 
with  the  requisites  of  the  common  law,  as  these  do, 
one  or  other  must  be  followed.1 

The  statute  21st  Henry  8th  is  not  reported  by 
the  judges,  nor  do  I  find  in  the  decisions  in  Penn- 
sylvania any  trace  of  its  ever  having  been  adopted. 
The  same  thing  may  be  said,  so  far  as  I  have  been 
able  to  discover,  of  most  of  the  states.     By  the 
revised  statutes  of  New  York,  the  21st  Henry  8th, 
and  11th  George  2d  were  amalgamated,  and  it  was 
not  necessary  to  set  forth  the  grant,  tenure,  demise, 
or  title  of  the  landlord  or  lessor,  or  to  name  any 
person  certain  as  the  tenant.     The  new  code  of 
procedure  is  believed  to  be  equally  liberal.     "We 
have  escaped  the  evils  which  produced  that  statute, 
by  reason  of  the  short  terms  for  which  our  leases 
are  commonly  made,  and  the  comparative  infre- 
quency  of  assignments  which  has  been  a  conse- 
quence.    The  want  of  a  similar  enactment  is  at 
times  felt,  particularly  in  cases  where  the  original 
lease  has  been  assigned,  and  there  is  a  question  as 
to  whether  the  assignee  has  been  recognized  as  his 
tenant  by  the  lessor. 

1  Banks  v.  Angell,  1  Aclol.  &  Ellis  854.     See  another  report 
of  this  case,  3  Nev.  &  P.  94. 


of  tin:   AVOWRY.  1  I'.' 

Where  there  is  no  doubl  as  to  the  recognition, 
the  avowry  should  be  against  the  assignee,  laying 
the  terms  of  tenancy,  as  to  the  amount  of  the  re- 
served rent,  and  time  of  payment  according  to  i  In- 
original  lease,  but  alleging  the  tenancy  to  he  "by 
virtue  of  a  demise  thereof  to  A.  B.  (the  original 
tenant)  theretofore  made." 

If  the  lessor  has  not  recognized  the  assignee,  it 
is  said  the  avowry  may  state  that  the  premises  are 
held  by  the  original  lessee.  Chitty  advises  the 
insertion  of  two  avowries  in  this  case,  one  on  the 
holding  of  the  lessee,  and  the  other  of  the  assignee.1 
If  it  is  at  all  doubtful  to  whom  the  original  letting 
was,  the  allegation  of  tenancy  should  be  "  by  vi  rtue 
of  a  demise  thereof,  theretofore  made,"  omitting 
the  words  "  to  him  the  said  plaintiff,"  or  to  "  A. 
B."2  And  this  general  form  of  avowry  would 
probably  be  good  in  all  cases,  for  proof  of  an  origi- 
nal demise  to  somebody,  with  title  deduced  to  the 
plaintiff,  would  support  this  averment,  but  not  an 
averment  of  a  direct  demise  to  the  plaintiff.3 

1  Bull  r.  Sibbs,  8  T.  R.  327.  Boot  v.  Wilson.  8  Eas1  316. 
Wadham  v.  Marlowe,  8  East  314,  in  note.  Auriol  v.  Mills.  4 
T.  R.  94.  Chitty'a  PL  1047,  n.w.  Beaumont  v.  Wood,  LO  S 
&  R.  433. 

2  Chilly's:  PL,  1047,  n.  z. 

3  Chitty's  PL,  1047,  n.  y.     Bristow  u.  Wright,  Doug.  I 


150  OF    THE   AVOWRY. 

"Where  the  defendant  avows  in  a  place,  which, 
on  the  face  of  the  avowry,  appears  to  be  a  different 
one  from  that  mentioned  in  the  declaration,  he  must 
traverse  the  place  laid  in  the  declaration.     As  when 
the  taking  is  alleged  at  the  parish  of  St.  Martin, 
in  the  Fields,  in  a  place  there  called  Maiden  Lane, 
and  the  defendant  says,  in  his  avowry,  that  the 
said  place  contains  one  messuage  in  the  parish  of 
St.  Paul's,  Covent  Garden,  the  avowry  is  ill,  with- 
out a  traverse  of  the  place  in  the  declaration.     2 
Lutw.   1147,  1151.     Peter  v.  Duke.     Herein  re- 
plevin  differs  from  trespass;   for   no  traverse   is 
necessary  in  the  latter,  and  the  plaintiff  may  make 
a  new  assignment ;  but  there  can  be  no  new  as- 
signment in  replevin.     If  the  defendant  avows  in 
a  place,  which  apparently  agrees  with  that  in  the 
declaration,  but  is  in  fact  different,  the  plaintiff 
must  set  it  right  in  his  bar.     As  when  the  plain- 
tiff states  the  taking  in  Blackacre,  and  the  defend- 
ant says  the  place  contains  a  certain  number  of 
acres,  and  is  called  Greenacre,  whereof  the  place 
in  the  declaration  is  parcel,  and  avows  for  damage 
feasant  in  his  freehold,  &c,  there,  in  case  Black- 
acre  and  Greenacre,  are  different  places,  the  plain- 
tiff may  allege  that  he  took  the  cattle  in  Black- 
acre,  and  traverse  that  it  is  parcel  of  Greenacre ; 
or,  if  the  avowry  should  not  state  Blackacre  to  be 
parcel  of  Greenacre,  the  plaintiff  may  demur,  or  he 


OF    THE    AVOWRY. 


L51 


may  waive  the  defect,  and  traverse  the  taking  in 

Greenacrc.1  If  the  parties  agree  in  the  place,  but 
vary  in  the  quantity  of  land  it  contains,  the  plain- 
till'  may  state  the  true  quantity  in  his  bar,  and 
proceed  in  his  justification  without  any  traverse.2 

Where  the  replevin  is  for  goods  taken  as  a  dis- 
tress for  the  arrears  of  ground-rent ;  we  have  seen 
that  in  Pennsylvania  the  owner  of  the  rent  is 
within  the  act  of  assembly  of  the  2ls1  March,  177-, 
and  there  is  no  reason  to  suppose  that  an  avowry 
stating  the  assignee  to  be  tenant  of  the  premises 
to  the  avowant,  "by  virtue  of  a  certain  demise 
thereof,  theretofore  made,"  would  not  be  good,  as 
in  ordinary  cases.  In  Franciscus  and  Reigart, 
however,  we  have  the  form  of  an  avowry  in  such 
case,  which  was  pronounced  good  by  the  supreme 
court ;  as  it  may,  on  that  ground,  be  preferred,  it 
is  given  at  length  in  the  appendix.  In  that  case, 
Franciscus  was  the  plaintiff  in  replevin,  and 
Reigart,  as  bailiff  of  Newman,  made  cognizance, 
and  acknowledged  the  taking  for  rent-arrear  :  and 
averred  that  Franciscus  enjoyed  the  lot  as  tenant 
of  Newman,  by  virtue  of  a  certain  demise  or  grant 
thereof  from  James  II.  to  Thomas  0.  his  heirs  and 


1  Treverton  v.  Hicks,  faith.  185. 
1  1  Wins.  Saund.  347,  u.  1. 


152  OF    THE   AVOWRY. 

assigns,  under  a  yearly  rent.  (The  said  Francis- 
cus  being  the  assignee  or  alienee  of  the  said 
Thomas  C,  the  grantor  of  the  said  lot  and  pre- 
mises ;  and  the  said  Newman  being  the  grantee 
or  alienee  in  fee  simple  of  James  Hamilton,  the 
grantor  of  the  said  lot.)1 

If  a  building  is  erected  upon  two  lots,  out  of  one 
of  which  a  ground-rent  issues,  and  the  ground-rent 
is  in  arrear,  and  distrained  for,  and  the  tenant 
brings  replevin,  and  declares  for  a  taking  in  the 
building  generally.  The  avowant  must  state  his 
ground-rent,  and  out  of  what  part  of  the  premises 
it  issues,  and  allege  the  distress  to  have  been  made 
there.  If  this  last  allegation  is  omitted,  the  avowry 
may  be  demurred  to  as  containing  no  justification, 
for  the  taking  may  have  been  in  the  part  of  the  house 
not  subject  to  the  ground-rent.  If  the  allegation 
is  made,  the  plaintiff  must  take  issue  upon  it,  and 
the  evidence  upon  this  point  will  decide  the  cause.2 

The  statute  11  Geo.  2d,  ch.  19,  does  not  extend 
to  avowries  and  cognizances  for  taking  cattle 
damage  feasant,  and  the  act  of  21st  March,  1772, 
is  equally  narrow.  They  must  therefore  state  the 
title  correctly,  as  that  the  defendant,  or  the  person 

1  Franciscus  v.  Reigart,  4  Watts  98. 

2  Phillips  v.  Whitsed,  2  Ellis,  and  Ellis  Q.  B.  804. 


OF    TILE   AVOWRY.  L53 

for  whom  he  acts  as  bailiff,  was  seized  in  fee,  or 
was  entitled  tinder  a  person  who  was  himself 
seized  in  fee;  and  it  is  said  to  he  enough  to  say, 
"that  the  place  in  which,  &c,  was  his  soil  and 
freehold,  and  that  he  took  the  cattle  damage  fea- 
sant,"1 although  contrary  to  the  common  rule  of 
pleading,  long  practice  having  sanctioned  it  in  this 
case. 

If  the  defendant  had  the  chattels  in  the  place 
mentioned  in  the  count,  this  satisfies  the  averment 
that  they  were  taken  there,  though  in  reality  the 
fact  was  otherwise;  and  if  the  taking  at  such  place 
would  have  heen  justifiable,  the  defendant  may  in 
his  avowry  admit  that  he  seized  them  there ;  but  if 
it  would  not,  he  must  necessarily  show  where  he 
took  them  and  aver  that  he  had  them  in  the  place 
alleged  by  the  count  in  his  way  to  the  pound,  or 
show  by  what  other  accident  they  came  there,  and 
then  proceed  with  the  avowry.2  A  formal  traverse 
that  the  defendant  did  not  take  them  in  the  place 
named  by  the  plaintiff,  must  not  be  added,  for  he 
has  admitted  what  in  contemplation  of  law  amounts 
to  taking  there,  and  so  there  is  no  inconsistency 

1  Wilk.  Repl.  59,  60.  1  Wins.  Saund.  347  d.  n.  6.  2  Wms. 
Saund.  206  a.  Jones  v.  Kitchen,  2  Bos.  &  Pul.  359.  2  Wms. 
Saund  284  d. 

2  Abercromhie  v.  Parkhurst,  2  Bos.  &  Pul.  480.  Totter  u. 
North,  1  Wins.  Saunders  347,  note.    Hammond  Nisi  Prius.  465. 


154  OP   THE   AVOWEY. 

between  the  declaration  and  the  defence.1  It  is 
not  necessary  to  traverse  the  number  of  acres 
stated  to  be  in  the  locus  in  quo.2 

If  there  are  two  or  more  defendants,  they  must 
all  avow  for  one  and  the  same  cause,  notwithstand- 
ing they  may  each  have  taken  the  chattels  on  a 
different  account;  because  if  one,  for  example, 
avows  for  rent  due  to  himself  alone,  and  another 
for  rent  due  to  himself  alone,  and  both  the  avowries 
are  true,  neither  of  them  can  have  judgment  for  a 
return,  inasmuch  as  the  one  is  not  more  entitled 
to  the  chattels  than  is  the  other,  and  as  the  goods 
ought  by  law  to  be  restored  to  the  defendants, 
(for  it  appears  that  the  plaintiff  had  no  right  to 
get  possession  of  them),  the  court  are  unable  to 
carry  the  law  into  effect  by  pronouncing  the 
proper  judgment.3  But  one  defendant  may  plead 
non  cepit  as  to  so  many  of  the  chattels,  and  avow 
taking  the  residue  for  one  cause,  whilst  the  other  de- 
fendant may  plead  non  cepit  to  the  latter,  and  avow 
seizing  the  former  goods  for  another  cause,  inas- 
much as  no  difficulties  can  arise  by  this  mode  of 
proceeding. 

1  Ryley  v.  Parkhurst,  1  Wilson  219. 

2  1  Leon.  pi.  2YT,  p.  193. 

3  Slingsby's  case,  5  Co.  19.  Basset  v.  Manxel,  2  Plowd.  at 
end  of  Reports,  10  a. 


of  the  avowry.  L55 

If  the  avowant  .states  his  title  incorrectly,  he 
must  foil  upon  a  traverse  taken  to  it,  although  in 
reality  he  is  entitled  to  the  demand  lor  which  he 
distrained;1  but  if  he  sets  out  his  title  truly,  and 
claims  more  than  is  liis  due,  lie  shall  have  a  return 
for  so  much  as  he  can  prove  himself  justly  entitled 
to,  and  shall  he  amerced  for  his  false  claim  of  the 
residue.  If  two  or  more  defendants  avow  and  the 
proof  is  of  a  demise  by  one  only,  it  will  not  support 
the  issue.2 

Thus,  if  one  avows  for  rent,  and  claims  the  whole 
of  it,  whereas  he  is  proprietor  of  two  parts  only,  he 
must  fail  if  his  title  is  put  in  issue  modo  et  forma  by 
the  replication ;  but  supposing  that  he  is  proprietor 
of  the  whole,  and  he  alleges  that  he  distrained  for 
twenty  pounds  arrear,  whereas  it  turns  out  that 
five  pounds  only  is  due,  he  shall  have  a  return  for 
five  pounds,  and  be  amerced  for  his  false  claim  of 
the  remaining  fifteen.'5  So  if  he  avows  for  rent 
and  a  nomine  poensB,  and  does  not  show  that  the 
rent  was  demanded,  the  avowry,  though  bad  for 
the  nomine  poense,  is  good  for  the  rent,  and  for  that 

1  Brown  v.  Sayce,  4  Taunt,  320.  Cosscy  v.  Diggons,  2  15.  & 
A.  546. 

2  EAvino-  r.  Vanarsdall,  I  S.  &  K.  370. 

3  Harrison  v.  Barnby,  5  T.  R.  248.     Forty  v.  Ember,  6   I 
434. 


156  OF    THE   AVOWRY. 

a  return  shall  be  awarded.  It  has  been  held  by 
some,  that  if  the  defendant  avows  for  two  distinct 
causes,  and  it  appears  from  his  own  showing,  that 
the  one  is  a  just  claim,  but  that  the  other  is  not  a 
sufficient  cause  in  law  to  warrant  the  taking,  the 
avowry  shall  abate  altogether:1  It  is  elsewhere 
affirmed,  that  there  is  a  difference  of  opinion  in  the 
books,  whether  in  such  case  the  avowry  is  bad  in 
all  or  for  parcel  only.2  If  the  avowry  is  for  a  par- 
cel of  a  demand  shown  to  have  accrued  due,  as  for 
a  quarter's  rent,  the  rent  being  payable  half  yearly, 
it  should  appear  that  the  residue  has  been  satisfied, 
because  a  distress  for  the  parcel  could  only  have 
been  made  under  those  circumstances.3 

If  the  plaintiff  has  declared  for  a  less  number  of 
chattels  than  were  really  taken  and  replevied,  the 
defendant,  after  avowing  the  seizure  of  those  men- 
tioned in  the  count,  may  (though  he  is  not 
obliged)4  aver  that  he  distrained  such  and  such 
goods  in  addition  to  those  alleged  by  the  plaintiff, 
and  which  have  been  restored  to  him,  and  pray 
that  a  writ  may  be  directed  to  the  sheriff,  com- 

1  Godfrey's  Case,  11  Co.  45. 

2  1  Roll.  Rep.  77. 

3  Holt  v.  Sambach,  Cro.  Car.  104.     Shepherd  v.  Boyce,  2 

Johns.  446. 

4  French  v.  Kent,  T.  Raym.  33,  in  note. 


OF    THE    AVOW  It  Y.  1  ."7 

manding  him  to  ascertain  the  fact,  and  if  true, 
cause  the  surplus  chattels  to  be  returned  to  the 
defendant;  and  this  without  disclosing  the  cause 
for  which  they  were  taken,  for  quoad  these  goods 
the  plaintiff  is  non-suited.  If  he  omits  so  to  do, 
he  is  without  remedy.1  If  the  plaintiff  has  de- 
clared (in  the  detinuit),  for  a  greater  number  of 
chattels  than  were  taken,  the  defendant  need  not 
set  the  matter  right ;  because  notwithstanding  the 
number  is  thereby  quodam  modo  admitted  (not 
being  denied),  yet  the  truth  may  be  shown  to  the 
jury,  who,  should  the  plaintiff  succeed,  will  measure 
the  damages  accordingly.2 

Should  the  plaintiff  have  replevied  fewer  chattels 
than  were  actually  taken,  the  defendant  may  avow 
for  all,  and  if  he  succeeds,  will  have  judgment  pro 
retorno  habendo  of  those  mentioned  in  the  count, 
and  likewise  judgment  to  retain  the  others  which 
are  already  in  his  possession  irrepleviable.5 

Surplusage  will  not  vitiate  an  avowry:  thus, 
where  one  made  cognizance  as  bailiff  of  A.,  ad- 
ministrator to  B.,  and  it  appeared  that  A.  had  a 

1  Snelgar  u.  Henston,  Cro.  Jac.  611. 

2  Wood  &  Foster's  Case,  Leon.  pL  54,  p.  42.  Snelgar  v. 
Henston,  Cro.  Jac.  611. 

3  35  Hen.  VI.,  HiL  1,  p.  40.     Hammond's  X.  P.  4G7. 

11 


158  OF    THE   AVOWRY. 

right,  but  not  as  administrator,  this  allegation  was 
rejected  as  surplusage.1 

The  statute,  11  Geo.  2d,  eh.  19,  allowing  dis- 
tress for  rent  on  goods  clandestinely  removed,  does 
not  apply  to  strangers'  goods,  or  the  goods  of  a 
subtenant,  and  the  avowry  must  show  that  the 
goods  were  the  tenant's.  '  The  same  construction 
has  been  put  upon  the  Pennsylvania  act  of  25th 
March,  1825.2 

An  avowry  of  taking  goods  off  the  demised  pre- 
mises, for  rent  arrear,  should  show  affirmatively 
that  possession  continued  on  the  part  of  the  tenant 
if  the  lease  has  expired,  or  it  will  be  bad  on  gene- 
ral demurrer.3 

An  avowry  by  executors  or  administrators  for  a 
distress,  under  the  29th  sect,  of  the  act  24th  Feb- 
ruary, 1834,4  ought  to  show  that  the  lands   and 

1  Browne  v.  Dunner}',  Hob.  208.  Browne  v.  Dunnery,  Mo. 
887.     Bowles  v.  Poor,  Cro.  Jac.  282. 

2  Thornton  v.  Adams,  5  M.  &.  S.  38.  Postman  v.  Harrell, 
6  Car.  &  Payne  225.  Fletcher  v.  Marillier,  9  A.  &  E.  461. 
Frisby  v.  Thayer,  25  Wend.  396.  Acker  v.  Witherill,  4  Hill 
N.  Y.  R.  112.  Adams  v.  LaComb,  1  Dall.  440.  Poole  v.  Lon- 
guevill,  2  Wms.  Saunders  284,  b.  n. 

3  Burr  v.  Yanbuskirk,  3  Cow.  263. 

4  Pamph.  Laws  1834,  p.  78. 


OF   THE   AVOWRY.  L59 

tenements,  whereon  the  distress  was  made,  were, 

at  the  time  of  the  distress,  in  the  seizin  or  posses- 
sion of  the  tenant,  who  ought  to  have  paid  such 
rent,  or  in  the  possession  of  some  other  person, 
claiming  the  same  from  or  under  said  tenant  by 
purchase,  gift,  or  descent,  and  that  the  rent  fell 
due  before  the  decedent's  death.1 

"Where  a  distress  has  been  made  in  several 
places,  in  some  of  which  the  defendant  had  no 
right  to  distrain,  he  will  be  allowed  to  pay  into 
court  the  damages  for  taking  in  the  places  in  which 
he  had  no  right,  and  to  avow  for  the  rest.2  A  man 
may  take  a  distress  for  one  cause,  and  avow  for  an- 
other.3 In  one  case  the  declaration  charged  that  the 
defendant  in  close  A.,  and  also  in  close  B.  took  the 
goods  of  plaintiff.  Defendant  avowed  that  he  took 
the  goods  in  A.,  for  arrears  of  rent  of  that  close, 
and  the  goods  in  13.  for  arrears  of  rent  in  that  close. 
Plea  in  bar  that  defendant  did  not  make  a 
separate  and  distinct  distress  upon  A.,  and  an- 
other upon  B.,  for  the  separate  rent  in  arrear,  but 
illegally  took  a  joint  distress.   Demurrer  which  was 

1  Wright  v.  Williams,  5  Cow.  338. 

2  Lambert  <•.  Eepworth,  2  Gale  &  Davidson  112. 

3  Groenvelt  u.  Burwell,  Com.  Rep.  78.  15  m  tier  r.  Baker, 
cited  Carth.  44.     1  Ld.  Ray.  466. 


160  OF   THE   AVOWRY. 

sustained,  J.  Blackburn  saying  :l  "  The  avowries 
are  perfectly  good  as  they  stand.  The  plaintiff's 
plea  in  bar  to  them  admits  in  effect  that  there  was, 
as  stated  in  the  avowries,  rent  in  arrear  in  respect 
of  each  of  the  separate  demises,  but  objects  that 
the  defendant  did  not  make  a  separate  and  distinct 
distress  upon  the  one  close  for  the  rent  in  arrear 
for  it,  but  made  and  took  one  joint  distress  for  the 
several  arrears.  This  raises  the  question  whether 
the  defendant  having  full  right  and  power  to  dis- 
train on  the  goods  in  each  close  as  he  did,  the  whole 
proceeding  was  nevertheless  invalidated  because 
he  at  the  time  of  distraining  declared  a  reason 
different  from  the  proper  one,  and  probably  at  that 
time  thought  the  reason  given  to  be  the  true  and 
sufficient  reason.  The  authorities  are  clearly 
against  such  a  proposition."2 

1  Phillips  v.  Whitsed,  2  Ellis  &  Ellis  Q.  B.  804. 

2  Greenville  v.  The  College   of  Physicians,   12   Mod.   386. 
Crowther  v.  Rarnslmtttam,  7  T.  R.  654. 


CHAPTER   VIII. 

THE   PARTIES    TO    AX   AVOWRY. 

Joint  tenants  must  join  in  an  avowry  for  rent, 
or  one  may  avow  for  himself,  and  make  cognizance 
as  bailiff  of  the  others;  the  avowry  and  conusance 
must  comprehend  the  entire  rent,  and  as  one  joint- 
tenant  may  dis.train  for  the  whole  in  point  of  inte- 
rest, and  needs  no  authority  so  to  do ;  so  he  may 
make  cognizance  as  bailiff  of  his  co-tenants,  with- 
out any  express  authority  from  them,  and  his  being 
bailiff  is  not  traversable  on  account  of  his  interest 
in  the  rent.1  The  same  rule  prevails  with  regard 
to  parceners,  and  it  will  be  fatal  if  one  of  several 
joint-tenants  or  co-parceners  distrains  and  avows 
for  his  individual  share  of  the  rent ;  for  the  tenant 
is  not  tenant  to  the  co-parcener  or  joint  tenant  for 
his  share  of  the  estate,  but  his  tenancy  is  a  tenancy 
of  the  whole,  held  under  all  the  joint-tenants  or  co- 
parceners as  one  landlord.1 

1  15  Hen.  VII.,  17  a.  Stedman  v.  Bates,  1  Lord  Ray.  64. 
Leigh  v.  Sheppard,  2  Bro.  &  Bing.  405.  Pulleu  v.  Palmer,  5 
Mod.  72. 


162  THE   PARTIES    TO   AH   AVOWRY. 

Tenants  in  common  must  sever  in  an  avowry,1  * 
and  the  avowry  of  each  must  be  de  una  medietate 
of  the  whole  rent,  and  not  of  a  certain  sum,  which 
amounts  to  a  moiety.  When  the  action  is  against 
one  of  several  tenants  in  common,  he  should  avow 
for  his  own  proportion,  and  in  general  he  makes 
cognizance,  as  bailiff  of  his  companion,  for  the 
residue ;  or  he  may  avow  only  for  his  undivided 
share  of  the  rent.2  If  the  action  of  replevin  be 
against  two  tenants  in  common,  they  should  join, 
one  avowing,  and  the  other  as  his  bailiff  making 
cognizance  for  an  undivided  moiety  of  the  rent ; 
and  the  one  who  first  made  cognizance  avowing  in 
his  own  right,  and  the  other  who  first  avowed 
making  cognizance,  as  his  bailiff,  for  the  other 
undivided  moiety.2  One  tenant  in  common  cannot 
avow  alone  for  taking  cattle  damage  feasant ;  but 
he  ought  also  to  make  cognizance  as  bailiff  of  his 
companion.3  An  avowry  for  a  rent  charge  devised 
to  the  wife,  may  be  made  by  the  husband  and  wife, 
in  right  of  the  wife.4 

The  executors  and  administrators  of  a  deceased 
landlord  may  avow  for  rent  due  in  the  lifetime  of 
the  landlord.5 

1  Co.  Lit.  198,  b.  2  Harrison  v.  Barnby,  5  T.  R.  246. 

3  Cully  v.  Spearman,  2  H.  Bl.  386. 

4  Wynne  v.  Wynne,  2  Mann.  &  Grang.  8. 

5  32  Hen.  Till.,  ch.  37.     Act  24th  Feb.  1834,  sect.  8,  29. 
Wright  v.  Williams,  5  Cow.  338. 


THE    PARTIES    TO    AN   AVOW  B  V.  L63 

If  several  defendants  appear  by  attorney  and 
make  conusance  as  bailiffs,  and  one  of  them  is  an 
infant ;  yet  it  is  no  error ;  for  they  all  make  but  one 
bailiff,  and  appear  in  auter  droit.1 

1  Coan  u.  Bowles  et  al.,  1  Show.  165. 


CHAPTER  IX. 

OF  THE  REPLICATION,  AND  OF  PLEAS  TO  THE 
AVOWRY. 

The  plaintiff  replies  to  the  plea  in  abatement, 
to  the  plea  in  bar,  or  justification,  and  when  the 
issue  is  reached,  the  cause  is  ready  for  trial.  To 
the  avowry  or  cognizance,  he  pleads  either  in  bar 
or  in  abatement,  and  as  has  been  said,  may  plead 
several  pleas  to  each  avowry  or  cognizance. 

Pleas  in  bar,  to  an  avowry  for  rent,  either  deny 
that  the  defendant  was  bailiff,  or  deny  the  demise, 
by  pleading  non-tenant,1  or  non-demisit,1  or  allege 
that  the  demise  was  bad  in  law  by  reason  of  the 
coverture,  or  infancy2  of  the  plaintiff;  or,  if  the  said 
rent  became  due,  that  it  was  tendered  ;3  or,  in  Eng- 
land, that  the  defendant  had  been  satisfied  by  a 

1  Rogers  v.  Pitcher,  1  Marsh.  541.  6  Taunt.  209.  Wheeler 
v.  Branscomb,  5  Adol.  &  Ellis  N.  S.  3T3. 

3  1  Marsh.  74. 

3  John  v.  Jenkins,  1  Cr.  &  Meeson  22T.  Niblet  v.  Smith,  4 
T.  R.  504. 


OF    THE   REPLICATION,    ETC.  !<>."> 

former  distress  :l  in  Pennsylvania  a  former  disi  reas, 
without  alleging  satisfaction,  is  sufficient,2  or  pay- 
ment, or  that  nothing  is  in  arrear.3 

Set-off  cannot  he  pleaded  in  replevin.4  But  the 
tenant  may  avail  himself  of  anything  in  bar,  to 
the  avowry  for  rent  in  arrear,  which  goes  to  show 
that  the  rent  claimed  by  the  avowant,  or  any  por- 
tion of  it,  is  not  due.4  And  if,  in  the  lease,  certain 
things  are  stipulated  by  the  landlord  to  be  done 
on  his  part,  which  form  the  consideration  for  the 
rent  to  be  paid  by  the  tenant,  and  the  landlord 
neglects  or  refuses  to  fulfil  his  covenant,  such 
breach  of  contract  may  take  away  his  right  to  re- 
ceive the  rent,  or  so  much  of  it  as  is  equivalent  to 
the  loss  sustained  by  the  tenant ;  and  this  may  be 
given  in  evidence  under  the  issue  of  no  rent  in 

1  Linglmm  u.  Warren  et  al.,  4  Moore  409.  2  Brod.  &  B.  36. 
Hudd  r.  Ilavenor,  lb.  662. 

2  Quin  v.  Wallace,  6  Whart.  452. 

3  Albright  v.  Pickle,  4  Yeates  264.  Hill  v.  Miller,  5  S.  & 
R.  357.     Williams  v.  Smith,  10  S.  &  R.  202. 

*  Barnes  450.  Fairman  v.  Flucfe,  5  Watts  516.  Beyer  v. 
Fenstermacher,  2  Whart.  95.  Peterson  u.  Haight,  3  Whart.  150. 
Warner  v.  Caulk,  3  Whart.  193.  Phillips  r.  Monges,  4  Whan. 
226.  Anderson  v.  Reynolds,  14  S.  &  R.  439.  But  see  Clay  o. 
Ins.  Co.,  5  Phila.  R.  72.    Jones  u.  Morris,  3  Exch.  742. 


106  OF   THE   REPLICATION, 

arrear;1   or   it   may  be   specially  pleaded.2     The 
plaintiff  cannot  plead  de  injuria,  &c,  to  an  avowry.3 

If  the  goods  are  privileged  from  distress,  that 
fact  may  be  pleaded.  If  the  goods  are  on  the 
premises  in  the  way  of  trade,  and  belong  to  a 
stranger,  or  if  they  are  the  goods  of  a  lodger  in  an 
inn,  or  a  boarding-house,  he  may  bring  replevin 
for  them  if  they  are  distrained,  and  plead  these 
facts  to  an  avowry  for  rent.4  If  a  cabinet-maker 
rents  furniture  to  a  tenant,  it  is  not  protected  by 
this  rule  from  the  landlord's  distress.5 

Nil  habuit  in  tenementis  is  not  xneadable  to  an 
avowry  under  the  statute  11  Geo.  2d,  it  being  held 
that  the  tenant  is  estopped  thereby  to  call  upon 
the  landlord  to  show  his  title.     This  statute,  says 

1  Fairman  v.  Fluck,  5  Watts  516.    Jones  v.  Morris,  3  Exch. 

742. 

2  Warner  v.  Caulk,  3  Whart.  193. 

3  Crogate's  Case,  8  Co.  66,  b.  Jones  v.  Kitchin,  1  Bos.  & 
Pul.  76.  Willes  99.  Little  v.  Lee,  5  Johns.  112.  Hopkins  v. 
Hopkins,  10  Johns.  369. 

*  1  Inst.  47,  a.  Adams  v.  Grane,  3  Tyrwh.  326.  Horsford 
v.  Webster,  5  Tyrwh.  409.  Brown  v.  Sims,  17  S.  &  R.  138. 
Kiddle  v.  Welden,  5  Whart.  9.  Simpson  v.  Hartop,  Willes 
512.     1  Smith's  Leading  Cases  301,  Am.  edition. 

5  Henkels  v.  Brown,  4  Phila.  R.  299. 


AXD    OF    PLEAS    TO    THE    AVOWRY.  1G7 

Gould,  Justice,  in  Syllivan  v.  Stradling,1  was  not 
calculated  for  demises  by  deed,  but  aimed  at  other 
demises:  enjoyment  was  the  matter  in  the  contem- 
plation of  the  makers  of  the  statute.  It  meant  that 
a  landlord,  in  cases  of  distress  for  rent,  when  there 
has  been  an  enjoyment,  shall  not  in  cases  of  re- 
plevin, be  obliged  to  set  out  his  title  in  his  plead- 
ings, though  they  should  go  as  far  as  a  surrebutter. 
But  the  tenant  is  permitted  to  show  that  the  land- 
lord could  not  justify  the  distress,  by  showing  that 
his  title  has  expired  since  the  demise,2  and  in  this 
case  the  proper  plea  is  non-tenuit  ;3  or  that  he  has 
been  compelled  to  pay  sums  which  he  was 
entitled  to  deduct  from  the  rent,  and  thus  it  was 
held  a  good  plea,  that  before  the  lessor  had  any 
thing  in  the  land,  a  termor  granted  an  annuity 
or  rent  charge,  and  granted  and  covenanted,  that 
the  grantee  might  distrain  on  the  premises ; 
that  the  annuity  was  in  arrear,  and  the  grantee 
demanded  it,  and  threatened  distress;  and  the 
plaintiff  paid  the  amount  of  the  rent  then  due  to 
the   avowant,    and    so   nothing    in   arrear.4      The 

1  2  Wilson  208. 

2  England  u.  Slade,  4  T.  R.  682.  Robins  v.  Kitchen,  8  Watts 
390.     J I  ill  r.  Miller,  5  S.  &  R.  355. 

3  TT ill  v.  Miller,  5  S.  &  R.  355. 

*  Taylor  v.  Zamira,  0  Taunt.  524.  Rogers  v.  Pitcher.  •; 
Taunt.  203.  ^ausford  v.  Fletcher,  4  T.R.  511.  Neave  o.  Moss, 
1  Bing.  SCO.     8  Moore  389. 


168  OF    THE    REPLICATION, 

same  is  true  of  interest  paid  on  a  mortgage  given 
before  the  lease.1  The  defence,  it  seems,  would 
have  been  equally  available  under  the  plea  of  no 
rent  arrear.  A  lessee  for  years,  who  transfers  all 
his  interest  to  a  third  person,  whether  by  words  of 
lease  or  assignment,  and  with  a  reservation  of  rent, 
cannot  distrain  for  the  rent  when  due,  unless  the 
instrument  by  which  the  transfer  is  affected  con- 
tains an  express  power  of  distress,  but  it  is  not 
enough  for  a  plea  to  an  avowry  in  such  case  to  say 
that  the  defendant  has  parted  with  all  his  estate 
in  the  premises.  It  must  go  on  and  aver  that  the 
estate  so  parted  with  was  an  estate  for  years,  for  a 
reservation  of  rent  on  a  grant  in  fee  leaves  the 
right  of  distress  in  the  grantor.2 

The  rule  that  a  tenant  shall  not,  during  his  pos- 
session of  premises,  dispute  the  title  of  the  land- 
lord under  whom  he  entered,  is  now  constantly 
recognized  in  ejectment.  The  origin  of  the  rule  is 
involved  in  some  doubt.  It  did  not  prevail  at 
common  law,  for  Littleton  says  the  lessor  may 
either  distrain  or  have  an  action  of  debt,  "but  in 
such  case  it  behooveth  that  the  lessor  be  seized  in 
the  same  tenements  at  the  time  of  his  lease ;  for  it 

1  Johnson  v.  Jones,  9  Adol.  &  Ellis  809. 

2  Manuel  v.  Reatb,  5  Phila.  Rep.  11, 


AND   OP   PLEAS   TO   THE   AVOWBY.  L69 

is  a  good  plea  for  the  lessee  to  say,  that  the  lessor 
had  nothing  in  the  tenements  at  the  time  of  the 
lease,  except  the  lease  he  made  by  deed  indented, 
in  which  case  such  plea  lieth  not  for  the  lessee  to 
plead."1     In  replevin  we  trace  its  origin  clearly  to 
a  statute.2     The  difficulties  to  the  landlord,  with- 
out any  corresponding  benefit  to  the  tenant,  which 
the  want  of  some  such  rule  occasioned,  produced 
in  England  the  statute  of  the  11  Geo.  2d,  ch.  19, 
and  in  the  State  of  Pennsylvania  the  corresponding 
statute  of  the  21st  of  March,  1772,  §  10.3     They 
apply  to  the  action  of  replevin  only.     New  York 
introduced  the  same  enactment  in  her  revised  code, 
prior  to  which  the  common  law  rule  prevailed.' 
The  rule  as  it  prevails  in  ejectment  is  supposed  in 
the  very  able  and  satisfactory  note,  by  the  Ameri- 
can editor,  to  the  Duchess  of  Kingston's  case,  and 
Doe  v.  Oliver,  in  the  American  edition  of  Smith's 
Leading  Cases,  to  be  referable  to  the  doctrine  of 
equitable  estoppel  by  matter  in  pais.5     It  is  not 

1  Co.  Lit.  lib.  1,  ch.  7,  sec.  58. 

*  Silly  v.  Dally,  Carth.  445.  1  Lord  Raymond  334.  Poole 
v.  Longueville,  2  Wms.  Saund.  p.  284.  Earrison  v.  ftf'Intosh, 
1  Johns.  380.     5  Comyn's  Digest,  Pleader,  3  K.  20. 

3  Syllivan  v.  Stradling,  2  Wilson  208. 

4  Harrison  v.  M'Intosh,  1  Johns.  380. 

6  2  Smith's  Leading  Cases  (American  edition)  472.  See 
Naglee  i\  Ingersoll,  7  Barr  185. 


170  OF    THE    IMPLICATION, 

improbable  that  the  rule  was  suggested  by  the 
statute  11  Geo.  2d,  ch.  19,  which  takes  away  the 
plea  iu  replevin ;  for  as  late  as  the  year  1815  we 
find  Dampier,  Justice,  in  Knight  v.  Smyth,  using 
the  following  language:  "It  has  been  often  ruled, 
that  neither  the  tenant,  nor  any  one  claiming  by 
him,  can  dispute  the  landlord's  title.  This,  I 
believe,  has  been  the  rule  for  the  last  twenty -Jive 
years,  and,  I  remember,  was  so  laid  down  by 
Buller,  J.,  upon  the  western  circuit."1 

Eviction  may  be  pleaded,  but  a  plea  that  the  de- 
fendant pulled  down  a  summer  house,  whereby  the 
plaintiff  was  deprived  of  the  use  thereof,  was 
holden  insufficient :  it  was  a  mere  trespass.2  The 
plea  must  aver  that  the  evictor  entered  upon  the 
defendant's  possession  by  virtue  of  a  lawful  title, 
acquired  before  or  at  the  time  of  the  grant  to  the 
defendant,  and  that  the  lessee  was  in  consequence 
evicted.2  If  the  defence  is  eviction  by  the  lessor, 
the  plea  must  state  an  eviction  or  expulsion  of  the 
lessee  by  the  lessor,  and  a  keeping  him  out  of  pos- 
session until  after  the  rent  became  due.3 

1  4  M.  &  S.  341.  Delaney  v.  Fox,  2  Coin.  Bench,  Rep.  N.  S. 
768. 

2  Hunt  v.  Cope,  Cowp.  242.  Naglee  v.  Ingersoll,  7  Barr 
185,  205.  Taylor  v.  Zamira,  6  Taunt.  530.  2  Wms.  Saund.  181,  n. 
10. 

3  1  Wms.  Saund.  204,  n.  2. 


AVI)    OF    PLEAS    TO    THE    AVOWRY.  171 

In  Pennsylvania,  plaintiff  may  plead  thai  he  has 
paid  taxes  under  the  eighth  section  of  the  act  of 
6th  April,  1802,1  and  under  sixth  section  of  tin- ad 
of  the  3d  of  April,  1804.2  If  an  indenture  of  de- 
mise be  specially  stated  in  the  avowry,  the  plaintiff 
may  plead  non  est  factum.9 

There  may  be  a  plea  in  abatement  to  an  avow- 
ry,4 but  Wilkinson  says  it  is  unheard  of  in  modern 
practice.5 

To  a  plea  of  property  in  a  stranger,  a  replication 
that  the  defendant  entered  the  house  of  the  plain- 
till'  in  the  night-time  and  took  the  goods,  will  not 
be  allowed.6  When  this  is  the  plea  the  plaintiff 
must  prove  property  in  himself.7 

When  the  defendant  justifies  the  taking  of  the 
beasts  damage  feasant,  or  avows  for  rent,  the 
plaintiff  may  reply  that  the  avowant,  after  taking 
the  distress  abused  it,  so  as  to  render  him  a  tres- 

1  3  Smith's  Laws  516. 

2  4  Smith's  Laws  203. 

3  Adam  v.  Dimcalf,  5  Moo.  47.">. 

I    »wne  '■.  Howies,  1  Salk.  93.     See  3  Mod.  248. 

5  Wilk.  Rcpl.  74. 

6  Harrison  v.  M'lutosh,  1  Johns.  380. 

7  Simcoko  v.  Frederick,  1  Ind.  54. 


172  OF    THE   REPLICATION,    ETC. 

passer  ab  initio.1  This  plea  to  an  avowry  for  rent 
is  taken  away  in  England  by  the  11  Geo.  2d,  ch. 
19,  sec.  19.  This  section  of  the  'statute  is  not 
reported  as  in  force  in  Pennsylvania. 

To  the  avowry  or  cognizance  for  damage  feasant, 
the  plaintiff  may  reply  by  denying  the  defendant's 

title,  his  seizin  in  fee,  or  the  demise  stated  in  the 
avowry  or  cognizance,  or  that  the  plaintiff  is  seized 
in  fee  of  other  premises,  in  respect  of  which  he  is 
entitled  to  a  right  of  common  on  the  locus  in  quo 
— or  that  the  cattle  escaped  by  reason  of  the  defect 
of  fences  which  the  defendant  is  under  an  obligation 
to  repair.2 

1  Hopkins  v.  Hopkins,  10  Johns.  369. 

2  Wilk.  Repl.  77. 


CHAPTER    X. 

THE  TRIAL,  E\  I  DIN  (i:.   ETC. 

The  cause  being  at  issue,  and  regularly  on  the 
trial  list,  will  be  tried  in  its  turn.  As  in  other 
cases,  the  party  on  whom  lies  the  afiirmal  ive  of  the 
issue  will  be  entitled  to  begin  and  conclude.  In  an 
avowry  for  rent  arrear,  and  the  plea  of  non  tenuit, 
the  avowant  begins.1  But  if  any  plea  is  pleaded 
by  which  the  affirmative  of  the  issue  is  thrown 
upon  the  plaintiff,  he  is  entitled  to  open  and  con- 
clude.2 In  England,  on  the  plea  of  no  rent  arrear, 
the  plaintiff  begins.3  The  contrary  practice  is 
understood  to  prevail  in  the  city  and  county  of 
Philadelphia.  Some  contrariety  of  opinion  has 
been  entertained  as  to  who  is  entitled  to  begin  on 
the  plea  of  property.  In  a  case  where  property  in 
a  third  person  was  pleaded,  it  was  held  in  England 

1  3  Chit.  Gen.  Prac.  876. 

2  Curtis  v.  Wheeler,  4  C.  &  P.  196.  Williams  w.  Thomas, 
4  C.  &  P.  234. 

3  Cooper  v.  Eggiuton,  8  C.  &  V.  74^.  Williams  v.  Thomas, 
4  C.  &  P.  234. 

12 


174  THE   TRIAL,    EVIDENCE,    ETC. 

that   the  defendant  had   a   right   to   begin.1      In 
Pennsylvania,  the  opinion  of  Judge  Kennedy,  as 
expressed  in  Marsh  v.  Pier,2  has  been  followed. 
The   learned  judge,   speaking  for  himself  alone, 
after  admitting  that  a  plea  purely  affirmative  gives 
the  defendant  the  right  to  conclude,  denies  that  the 
plea  of  property  produces  that  effect  in  replevin. 
The  plaintiff  must  first  prove  that  he  has  a  right 
to  maintain  his  writ  of  replevin,  by  showing  that 
he  has  either  an  absolute  or  special  property  in 
himself.     It  will  not  be  enough  for  him  to  show 
the  mere  fact  of  the  naked  possession  of  the  pro- 
perty.3    And  in  a  subsequent  case,  Judge  Rogers, 
expressing  the  opinion  of  the  court,  says :  "  The 
plea  of  property  throws  the  burden  of  proof  upon 
the  plaintiff  in  replevin,  to  prove  property  in  him- 
self.    And  this  was  the  opinion  of  Justice  .Ken- 
nedy, in  Marsh  v.  Pier  (4  R.  283),  with  which, 
for  the  reasons   there   stated,  we  fully  concur."4 
The   same  doctrine   is  held   in   Maryland,5   Mas- 
sachusetts,6 and  Indiana.7 

1  Colstone  v.  Hiscolls,  1  Moo.  &  Rob.  301. 

2  4  Rawle  273.     See  Clemson  v.  Davidson,  5  Binn.  399. 

3  Co.  Lit.  145,  b.     Seibert  v.  M'Henry,  6  Watts  301. 

4  Mackinley  v.  M'Gregor,  3  Whart.  398. 

5  Cnlluni  v.  Bevans,  6  Harr.  &  Johns.  4G9. 

6  Waterman  v.  Robinson,  5  Mass.  303. 
•  Siuicoke  v.  Frederick,  1  Ind.  54. 


THE    TIJIAL,    EVIDENCE,    ETC.  1 75 

Where  the  plea  was  that  the  distress  was  not 
made  within  twenty  years  next  after  the  time  when 
the  right  to  distrain  first  accrued,  and  replication, 
that  the  distress  was  made  within  twenty  years 
next  after  the  time  when  the  right  to  make  a  dis- 
tress for  the  said  rent  first  accrued.  It  was  held 
that  the  plaintiff  was  entitled  to  begin.1  One  teal 
on  the  question  who  is  entitled  to  begin  is  to  con- 
sider who  would  be  entitled  to  the  verdict  in  the 
event  of  no  evidence  being  given  on  either  side. 
The  burden  of  proof  would  be  on  the  party  not 
entitled  to  the  verdict,  and  he  should  begin.'2 

The  party  having  the  right  to  begin  must  sup- 
port his  case  by  evidence.  He  should  be  prepared 
to  prove  the  issue  raised  by  the  pleadings,  and  also 
to  show  the  amount  of  damages  to  which  he  is  en- 
titled. See  ante,  page  44,  for  cases  in  which  he 
will  be  required  to  prove  a  demand  before  suit 
brought. 


\-> 


The  plea  of  non  cepit  admits  the  property ;  the 
taking,  or  unlawful  detention  only  is  in  issue,  and 
to   this   question  the  evidence  must  apply.3      A 

1  Collier  v.  Clark,  5  Adol.  &  Ellis,  N.  S.  4C.T. 

2  Huckman  u.  Femie,3  M.  &  W.505.  Lcctc  u.  Gresham  Life 
Ins.  Co.  7  Eng.  L.  &  Eq.  Rep.  581,  s.  c,  15  Jurist,  1161. 

3  2  Stark.  Ev.  714.  Mackinley  v.  M'Gregor,  3  Whart.  391. 
Carroll  v.  Harris,  19  Ark.  237. 


176  THE   TMAL,    EVIDENCE,    ETC. 

general  order,  before  the  commencement  of  the 
suit,  to  a  servant,  not  to  deliver  the  goods  to  the 
plaintiff,  is  admissible  in  evidence,  as  tending  to 
prove  an  unlawful  detention.1  But  it  is  said  special 
matter  in  justification  cannot  be  given  in  evidence 
under  this  plea.2  If  the  sheriff  returns  that  he  has 
replevied  the  property,  it  is  conclusive ;  evidence 
will  not  be  received  to  contradict  it,  either  in  whole 
or  in  part.3  The  averment  of  an  unlawful  taking 
is  made  out  by  proof  that  the  defendants  obtained 
possession  of  the  goods  from  a  person  not  authorized 
to  sell  them.4 

The  plea  of  cepit  in  alio  loco  obliges  the  plain- 
tiff to  prove  either  that  the  cattle  or  goods  were 
taken  in  the  place  mentioned  in  the  declaration, 
or  that  they  were  in  the  defendant's  possession  in 
that  place ;  for,  as  the  defendant  took  them  wrong- 
fully at  first,  the  wrong  is  continued  and  repeated 
in  every  place  in  which  he  afterwards  detains 
them.5 

1  Johnson  v.  Howe,  2  Gilman  342. 

8  M'Farland  v.  Barker,  1  Mass.  153.  Ely  v.  Ehle,  3  Comst. 
506. 

3  Phillips  v.  Hyde,  1  Dall.  439.  Knowles  v.  Lord,  4  Whart. 
504. 

4  Gray  v.  Nathans,  1  Pike  557. 

5  Walton  v.  Kersop,  2  Wils.  354.  Johnson  v.  Wolyer,  1 
Str.  507.     Abercrombie  v.  Parkhurst,  2  B.  &  P.  481. 


THE   TRIAL,    EVIDENCE,    ETC.  177 

Upon  issue  taken  on  a  plea  of  non-tenuit  modo 
et  forma,  or  of  non  demisit,  &c,  in  bar  of  an 
avowry  for  rent  in  arrear,  the  defendant  must 
prove  the  holding  as  alleged  in  the  plea ;  and  a 
variance  as  to  the  amount  of  annual  rent  will  be 
fatal.1  So  if  there  is  a  misstatement  of  the  day 
on  which  the  rent  becomes  due  ;2  but  not  if  the 
amount  due  is  misstated.  Where  the  defendant 
made  cognizance  for  rent  for  two  years  and  a  quar- 
ter, ending  on  a  day  specified,  it  was  held  to  be 
sufficient  to  prove  that  he  was  entitled  to  rent  for 
two  years,  ending  on  that  day.3  Where  the 
declaration  was  for  taking  cows  in  four  closes,  and 
the  avowry  stated  the  holding  at  a  certain  yearly 
rent,  and  the  evidence  was  that  the  four  closes,  and 
also  two  others,  were  held  at  that  rent,  it  was 
held  to  be  no  variance.4  Although  the  tenant  may 
not  plead  nil  habuit  in  tenementis,  or  prove  the 
landlord's  inability  to  demise  under  the  plea  of  non 
tenuit,  or  non  demisit;  he  may  show  that  the  land- 
lord's title  has  expired  subsequently  to  the  lease, 

1  Cossey  u.  Piggons,  2  Barn.  &  Aid.  546.  Brown  v.  Sayce, 
4  Taunt.  320.  Ryder  v.  Malbon,  3  C.  &  P.  594.  Tice  o.  Nor- 
ton, 4  Wend.  663.     Ewing  v.  Vanarsdale,  1  S.  &  R.  370. 

2  2  Starkie  Ev.  716. 

3  Forty  v.  Imbcr,  6  East  434. 

4  Hargreave  u.  Sherwin,  6  B.  &  C.  34.  Page  v.  Chuck,  10 
Moore  264. 


178  THE    TEIAL,    EVIDENCE,    ETC. 

and  that  he  has  been  compelled  to  pay  rent  to  an- 
other.1 

"When,  by  misrepresentation  and  fraud,  the 
owner  of  land  has  been  induced  to  execute  a  lease 
whereby  he  admits  himself  to  be  a  tenant,  upon 
the  issues  of  non  demisit  and  no  rent  in  arrear  it 
will  be  competent  for  him  to  show  these  facts,  and 
the  fact  that  he  was  persuaded  to  give  up  his 
estate  by  it,  is  the  strongest  evidence  of  misrepre- 
sentation and  fraud.2 

If  the  tenant,  prior  to  the  time  at  which  the  rent 
distrained  for  became  due,  purchased  the  premises, 
with  the  assent  and  by  the  advice  of  the  landlord, 
that  fact  may  be  given  in  evidence  under  the  plea 
of  non  tenuit  or  non  demisit,  for  the  plaintiff  may 
traverse  the  tenancy.3 

Proof  that  the  plaintiff  was  let  into  possession 
of  land  under  an  agreement  for  a  lease  before  the 
lease  was  executed,  is  not,  of  itself,  evidence  of  a 
tenancy.4     But  where  a  person  had  been  in  posses- 

1  England  v.  Slade,  4  T.  R.  682. 

2  Robins  v.  Kitchen,  8  Watts  390. 

3  Syllivan  v.  Straddling,  2  Wils.  208.  Hill  v.  Miller,  5  S.  & 
R.  355. 

4  Hegan  v.  Johnson,  2  Tannt.  148.  Dunk  v.  Hunter,  5 
Barn.  &  Aid.  322.     Hayward  v.  Haswell,  5  Adol.  &  Ellis  265. 


THE    TRIAL,    EVIDENCE,    ETC.  L79 

feion  for  more  than  a  year  und^r  an  agreement  for 
a  lease,  and  had  paid  rent,  it  was  said  a  valid  dis- 
tress might  he  made,  and  these  facts,  given  in 
evidence,  were  enough  to  support  an  avowry.1 

The  plea  of  no  rent  in  arrear  admits  the  tenancy 
as  alleged  in  the  avowry;-  and  the  plaintiff  mus1 
prove    that   the   rent   has    been    paid;'2   obtaining 
judgment  lor  the  rent,  or  giving  a  note  for  it  does 
not  take  away  the  right  of  distress  unless  it  is  so 
expressly  agreed;3  and,  in  England,  it  has  heen 
held  that  a  plea  of  a  former  distress,  for  the  same 
rent,  is  not   sufficient,  unless  it    allege  that   the 
rent  was  satisfied  thereby,4  the  onus  of  proving  the 
satisfaction  being  on  the  plaintiff.    The  supreme 
court  of  Pennsylvania  has  refused  to  recognize  this 
doctrine,  and  it  seems  with  great  reason,  as  the 
landlord,  especially  since  the  act  3  Wm.  and  Mary, 

1  Knighl  r.  Beaiiet,  3  Bing.  361.  Hamerton  v.  Stead,  3 
Barn.  &  Civss.  478.  Mann  v.  Lovejoy,  1  Ry.  &  Mo.  355. 
Chapman  v.  Cluck,  4  Bing.  N.  C.  188.  Staniforth  u.  Fox,  7 
Bing.  590. 

2  2  Stark.  Ev.  7 17.  Hill  v.  Miller,  5  S.  &  R.  357.  Alexander 
v.  Harris,  4  Cranch  299. 

3  Snyder  o.  Kunkleman,3  Penna.  187,  190.  But  Bee  Warner 
,-.  Forney,  L3  S.  &  R.  52;  also  Davia  v.  Tyde,  I  Sev.  &  M.4G2; 
Bailey  v.  Wright,  3  M'Cord  484. 

*  II  ud.l  r.  Ravenor,  2  B.  &  B  662.  Lear  o.  Edmonds,  1  B. 
&  Aid.  l.'.T. 


180  THE    TEIAL,    EVIDENCE,    ETC. 

sess.  1,  eh.  5,  and  the  act  21st  March,  1772,1  has* 
the  sole  control  of  the  distress,  and  is  hound  there- 
by to  sell.2  "Where  the  goods  of  a  sublessee  were 
taken  by  the  paramount  landlord  as  a  distress  for 
rent,  it  was  held  that,  on  the  plea  of  no  rent  arrear, 
it  was  competent  for  the  sublessee,  plaintiff  in 
replevin,  to  prove  that  the  defendant  had  previously 
distrained  the  goods  of  the  mesne  tenant  for  the 
same  rent,  and  sold  the  same ;  and  that  the  de- 
fendant must  show  that  the  distress  first  taken  was 
insufficient.3  Of  course  a  plea  of  former  distress 
for  the  same  rent  would  have  been  good,  without 
alleging  satisfaction.  Judge  Kennedy,  after  re- 
viewing the  opinions  in  Hudd  v.  Ravenor,  and 
Lear  v.  Edmonds,  says,  "  These  opinions,  as  to  the 
construction  of  the  statute  W.  and  M.,  though 
coming  from  highly  respectable  judges,  would  ap- 
pear to  have  been  advanced  without  much  con- 
sideration, without  any  satisfactory  course  of  rea- 
soning to  support  them,  and  in  direct  opposition,  as 
I  think  I  shall  show  in  the  sequel,  to  the  principle 
laid  down  and  established  in  the  King's  Bench,  in 
"Vaspor  v.  Edwards.  They,  therefore,  can  have  no 
influence  upon  our  judgment  in  giving  to  our  act, 
in  relation  to  the  same  matter,  a  different  construc- 
tion, when  its  various  provisions,  as  well  as  the 

1  1  Sm.  Laws  3?0.  2  Quin  v.  Wallace,  6  Whart.  452. 

3  Quin  v.  Wallace,  6  Whart.  404. 


THE    TRIAL,    EVIDENCE,    ETC.  L81 

language  employed,  ■would  seem  to  require  it. 
Considering*  then,  as  we  do,  our  act,  as  to  the  Bale 
of  the  goods,  to  be  imperative  on  the  landlord,  it 
would  seem,  therefore,  to  give  to  the  distress  the 
character  of  an  execution.  The  only  difference 
which  now  exists  between  goods  taken  by  the 
landlord  as  a  distress  for  rent,  and  those  taken  in 
execution  by  the  sheriff  is,  that  the  former  are  re- 
pleviable,  whereas  the  latter  are  not.  But  this  is 
entirely  immaterial  in  regard  to  the  legal  effect  of 
a  distress  in  discharging  the  rent,  as  long  as  the 
goods  are  not  taken  from  the  landlord  by  a  replevin ; 
and  even  if  they  are  it  can  make  no  difference, 
because  they  must  be  restored  to  him  again,  pro- 
vided the  distress  was  lawfully  taken.  The  legal 
effect  of  the  sheriff's  taking  goods  of  the  defendant 
in  execution,  to  the  amount  or  value  of  the  debt,  is 
well  settled  to  be  a  discharge  of  the  defendant  from 
the  judgment,  and  all  further  execution,  although 
he  does  not  satisfy  the  plaintiff;1  or  lias  not  returned 
the  writ  ;  and  it  will  be  a  bar  to  a  scire  facias  on 
the  judgment,  so  that  the  plaintiff  cannot  have  a 
second  execution.2     And  why  should  not  the  same 

1  Slie  r.  Finch,  2  Roll.  Rep.  57.  8.  c.  Cro.  Jac.  514.  Cleric 
v.  Withers,  6  Mod.  292,  299.     s.  c.  1  Salk.  323. 

*  Mountney  v.  Andrews,  1  Cro.  Eliz.  237.  S.  0.  1  Leon.  150, 
and  s.  p.  in  Clerk  w.  Withers,  2  Ld.  Raymond  10T2.  2  Wins. 
Sannd.  47  a,  note  1. 


182  THE   TRIAL,    EVIDENCE,    ETC. 

doctrine  and  principles  be  applied  to  goods  dis- 
trained by  the  landlord,  when  of  sufficient  amount 
to   pay  the  rent  ?     If  there  be  any  difference  in 
reason   between  the  two  cases,  it  is  against  the 
landlord,  for  he  either  distrains  himself  in  person, 
or  by  a  bailiff  of  his  own  appointment,  and  there- 
fore has  the  goods  in  his  own  hands,  and  under 
his  own  control,  so  that  he  can,  by  a  sale  thereof, 
satisfy  the  rent;  whereas  the  execution   creditor 
is   in   some  degree  dependent  upon  the  sheriff's 
movement,  for  obtaining  actual  satisfaction  of  his 
debt.     In   Mountney  v.   Andrews,  the   defendant 
pleaded  to  a  scire  facias  upon  a  judgment  against 
him,  that  upon  a  fieri  facias  directed  to  the  sheriff 
of  the  county  of  Leicester  for  levying  the  debt,  he, 
by  force  thereof,  took  divers  sheep  of  the  defen- 
dants for  the  debt,  and  detaineth  them.     And  this 
was  held  by  the  court  to  be  a  good  plea,  notwith- 
standing it  was  not  alleged  that  the  plaintiff  was 
thereby  satisfied.     The  value  or  sufficiency  of  the 
sheep  to  satisfy  the  debt  is  not  set  forth  ;  and  it  is 
plainly  inferable  that  they  had  not  been  sold  or 
disposed  of  by  the  sheriff,  but  still  remained  with 
him.     The  principle  of  this  case  is  recognized  and 
approved  by  three  of  the  judges  in  Clark  v.  "With- 
ers ;  first,  by  Gould,  J. ;  second,  by  Powell,  J. ; 
and,  third,  by  Holt,  C.  J. :  seeing  then,  it  is  not 
requisite  that  the  defendant  should  set  forth  in  his 


THE    TRIAL,    KVIDKXCK,    ETC.  L83 

plea  the  value  or  sufficiency  of  the  good>  taken  in 
execution  to  satisfy  the  judgment,  it  follow-,  of 
course,  that  he  cannot  be  required  to  prove  more 
than  what  is  contained  in  it;  so  that  if  the  goods 
have  been  found  insufficient  to  satisfy  the  judgment . 
it  will  lie  upon  the  plaintiff  to  prove  it.  Besides, 
as  ithas  ever  been  considered  oppressive,  and,  there- 
fore, unlawful,  to  make  a  second  seizure  of  the 
defendant's  goods  for  the  same  debt,  or  a  second 
distress  of  the  tenant's  goods  for  the  same  rent, 
without  some  necessity  or  good  cause  for  it;  the 
presumption  is,  that  goods  sufficient  were  taken, 
in  either  case,  in  the  first  instance,  and  therefore  it 
is  that  it  rests  upon  the  plaintiff  in  the  judgment, 
or  the  landlord  claiming  the  rent,  to  repel  this  pre- 
sumption by  evidence,  and  to  show  some  justifiable 
cause  for  resorting  to  a  second  seizure  or  distress. 
This  doctrine  is  laid  down  and  established  by  the 
decision  of  the  court  of  King's  Bench  in  Yasper  v. 
Edwards  or  Eddowes,  12  Mod.  658,  1  Ld.  Raym. 
720.  1  Salk.  248.  A  cause  that  was  spoken  to 
several  times  by  counsel  at  the  bar,  and  one  in 
■which  the  judges,  after  great  consideration,  de- 
livered their  opinions  seriatim  ;  Gould,  J.,  dissent- 
ing (not  as  to  the  goodness  of  the  plea,  but  in 
regard  to  the  replication),  from  Holt,  C.J.,  and 
Powis  and  Turton,  Justices.  The  action  was 
trespass,  quare  clausum  fregit,  and  feeding  on  the 


184  THE    TRIAL,    EVIDENCE,    ETC. 

plaintiff's  grass  with  a  pig.  The  defendant  pleaded 
not  guilty  as  to  all,  except  the  trespass  hy  the  pig ; 
and.  as  to  that,  that  the  plaintiff  had  taken  the  pig 
doing  the  damage,  and  impounded  it  in  a  common 
pound  at  J.,  and  there  the  said  pig  ex  causa  predicta 
detinuit.  The  plaintiff,  by  his  replication,  con- 
fessed the  taking  and  impounding,  but  alleged 
that  afterwards  the  pig,  without  his  consent  and 
will,  did  escape  out  of  the  pound ;  to  which  the 
defendant  demurred.  The  plea  was  held  good,  and 
the  replication  of  the  plaintiff  bad,  because  he  did 
not  undertake  to  show  thereby  that  the  escape  was 
without  his  default.  The  distress,  it  will  be  ob- 
served, being  taken  damage  feasant,  was  taken 
merely  as  a  pledge,  and  could  not  be  sold  by  the 
plaintiff;  which  made  the  case  stronger  for  him 
than  it  would  have  been,  could  he  have  satisfied 
himself  by  the  sale  of  the  distress.  The  court  held 
that  before  the  distress  is  made  in  such  case,  the 
plaintiff  has  choice  either  to  distrain  or  bring  his 
action  of  trespass ;  but  having  made  his  election, 
and  taken  a  distress  in  that  case,  he  could  never 
have  recourse  to  any  other  remedy,  till  that  which 
he  had  adopted  proved  ineffectual  through  the  act 
of  God,  or  the  wrong  of  the  defendant,  neither  of 
which  was  alleged  by  the  plaintiff  in  his  replica- 
tion. It  is  clear  that  the  judges,  in  delivering 
their  opinions  as  to  a  distress  being  prima  facie,  a 


THE   TRIAL,    EVIDENCE,    ETC.  185 

bar  to  a  second  distress,  or  another  remedy,  make 
no  distinction  between  a  distress  for  rent  and  a 
distress  damage  feasant ;  so  that  if  a  distress 
be  taken  for  rent,  an  action  of  covenant  or  debt,  or 
case  for  use  and  occupation,  cannot  be  supported 
for  it  afterwards,  without  the  landlord's  showing 
that  he  had  lost  the  benefit  of  the  distress  without 
any  default  upon  his  part ;  or  that  it  had,  upon  a 
sale  thereof,  proved  insufficient  to  pay  the  whole  of 
the  rent,  and  that  his  action  was  only  brought  for 
the  residue.  "  It  is  enough,"  says  Lord  Holt,  "  for 
him  that  is  distrained,  to  show  a  distress  taken, 
and  it  behooves  the  other  side  to  show  how  the 
possession  of  it  happened  to  be  lost ;  and  since  he 
has  lost  the  possession,  he  knows  best  how."  And 
so  it  may  be  said  in  the  case  before  us,  that  it  was 
enough  for  the  plaintiff  to  show  a  prior  distress 
taken  for  the  same  rent,  but  after  that  wras  shown, 
it  behooved  the  defendant,  who  had  the  possession 
and  control  of  the  distress,  to  show  what  had  be- 
come of,  or  been  done  with  it,  and  if  he  has  parted 
with  it,  he  best  knows,  and  ought,  therefore  to 
show  it.  He  has  evidence  of  its  value  within  his 
knowledge,  or,  at  least,  must  be  presumed  to  have. 
which  the  plaintiff  cannot  be  expected  to  have,  as 
it  was  his  duty  to  have  it  appraised :  and  if  he  sold 
it,  he  ought  to  give  an  account  thereof,  by  showing 
the  price  at  which  the  articles  distrained  on  were 


18G  THE   TRIAL,    EVIDENCE,    ETC. 

respectively  sold  ;  otherwise  the  fair  presumption 
is,  that  he  is  fully  paid  the  amount  of  his  rent ;  and 
especially,  as  would  seem  from  the  paper  book  here, 
that    instead  of  evidence  being  given,  going  to 
repel  this  presumption,  evidence  was  given  on  the 
part  of  the  plaintiff  showing  that  the  former  dis- 
tress was  of  sufficient  value  to  satisfy  the  whole 
amount  of  the  rent  claimed.     And  these  are  the 
principles  which  would  seem  to  govern  in  the  case 
of  a  sheriff,  who  has  taken  goods  under  an  execu- 
tion placed  in  his  hands,  and  would  make  it  his 
duty  to  show  by  proof,  after  evidence  given  of  his 
having  taken  the  goods,  how  he  had  disposed  of 
them,  and  what  they  had  brought  at  sale,  if  any 
appeared  to  be  made.1     "We,  therefore,  think  that 
the  district  court  was  wrong  in  charging  the  jury, 
that  the  plaintiff  was  bound  to  show  that  the  goods 
first  distrained   had   been  converted  into  money, 
and  were  sufficient  to  pay  the  whole  rent.     On  the 
contrary,  we  are  of  opinion,  that  it  was  incumbent 
on  the  defendant,  in  order  to  justify  his  making 
the  second   distress,  to  show   how,  and   in  what 
manner  the  first  had  been  disposed  of  by  him,  as 
it  was  entirely  under  his  control,  and  to  show  that, 
upon  a  lawful  disposition  made  of  it  by  him,  it  had 
proved  insufficient  to  pay  the  whole  of  the  rent. 

1  Beale's  Exs.  v.  The  Com.  11  S.  &.  R.  299,  304.     Little  v. 
Delancey,  5  Binn.  272-3. 


THE   TRIAL,    EVIDENCE,    ETC.  L87 

We  consider  Lear  v.  Edmonds,  Iludd  v.  Ravenor, 
noticed  before,  and  Lingham  v.  Warren  (2  ]>.  & 
B.  3G.     E.  C.  L.  K.  Vol.  6,  p.  10),  containing  the 

same  principle,  as  repugnant  to  the  principle  of 
Vasper  v.  Eddowes,  which  may  be  regarded  as  a 
binding  authority  upon  us,  it  having  been  decided 
before  the  revolution,  and  which  settles  the  prin- 
ciple that  a  party  having  a  right  to  distrain,  can- 
not, after  having  made  a  distress,  resort  to  any 
other  remedy  for  the  same  cause,  without  showing 
that  the  distress  has  been  rendered  unproductive 
cither  by  the  act  of  God,  or  the  act  of  the  person 
from  whom  it  has  been  taken."1 

A  failure  upon  the  part  of  the  landlord  to  comply 
with  stipulations  in  the  lease  which  enter  into  the 
consideration  therefor,  as,  for  instance,  to  do  certain 
repairs,  takes  away  his  right  to  receive  the  rent, 
or  so  much  of  it  as  is  equivalent  to  the  loss  sus- 
tained by  the  tenant,  and  this  failure  may  be  given 
in  evidence  under  the  plea  of  no  rent  in  arrear.2  ^ot 
so  where  the  promise  to  repair  forms  no  part  of  the 
original  contract,3  and  the  proper  measure  of  da- 
mages in  such  a  case  is  the  difference  between  the 
worth  of  the  premises  in  the  condition  in  which 

1  Quin  v.  Wallace,  6  Whart.  452,  464. 

2  Fairman  u.  Fluck,  5  Watts  510. 

8  Phillips  v.  Monges,  4  "Whart.  226.  Jones  v.  Morris,  3 
Exch.  742. 


188  THE    TRIAL,    EVIDENCE,    ETC. 

they  remained,  and  that  which  they  would  have 
been  in,  had  the  landlord's  covenant  been  per- 
formed ;  or,  in  other  words,  so  much  less  as  they 
would  have  rented  for  without  the  covenant.1 

Where  the  replevin  is  by  a  stranger,  the  tenant 
is  not  a  competent  witness  under  the  plea  of  no 
rent  arrear  to  prove  that  no  rent  is  due,2  unless  the 
disability  of  interest  has  been  removed  by  statute ; 
but  he  is  competent  to  prove  that  the  property 
belonged  to  the  plaintiff,  and  not  to  himself,  the 
tenant.3 

Where  issue  was  joined  upon  non  tenuit,  and 
also  upon  the  plea  of  nothing  in  arrear,  it  was  held 
that  the  first  issue  being  found  for  the  plaintiff,  the 
second  became  immaterial;  and  that  the  proper 
course  was  to  discharge  the  jury  from  giving  a 
verdict,  but  that  if  any  verdict  was  entered,  it 
must  be  for  the  plaintiff.4  If  the  fact  of  the  de- 
fendant being  bailiff  is  put  in  issue,  evidence  of  a 
subsequent  ratification  and  approval  will  be  suffi- 
cient, although  there  was  no  prior  command 
given.5 

1  Fairman  v.  Fluck,  5  Watts  51?. 

2  Kessler  v.  M'Conachy,  1  Rawle  435.  Rush  v.  Flickwire, 
1?  S.  &.  R.  82. 

3  M'Conachy  v.  Kessler,  3  Penna.  46?. 

4  Cossey  v.  Diggons,  2  Barn.  &  Aid.  54P>. 

5  Trevilian  v.  Pine,  11  Mod.  112.     , 


THE    TRIAL,    EVIDENCE,    ETC.  L89 

If  it  is  intended  to  proceed  under  17  Car.  II.,  ch. 
7,  the  avowant  should  be  prepared  to  prove  the 
amount  of  rent  in  arrear,  and  also  the  value  of  the 
distress. 

"Where  issue  is  taken  on  a  plea  of  tender  of 
amends  to  the  person  entitled  to  receive  them,  it 
seems  that  evidence  of  a  tender  to  the  bailiff  making 
the  distress,  the  principal  being  present,  is  insuffi- 
cient. But  if  a  distress  be  made  by  a  bailiff,  in 
the  absence  of  the  principal,  and  the  bailiff  be 
proved  to  be  his  usual  receiver,  a  tender  to  the 
latter  seems  to  be  equivalent  to  a  tender  to  the 
principal.1 

Under  the  plea  of  property,  the  defendant  is  at 
liberty  to  show  either  a  general  or  special  property 
in  himself,  either  by  bill  of  sale,  delivery  from  the 
plaintiff,  or  otherwise.2  And  the  place  of  taking  is 
not  material.  As  to  what  constitutes  a  delivery 
see  "Winston  v.  Leonard,  12  Harris  14. 

In  England  it  seems  to  have  been  held  that  this 
was  purely  an  affirmative  plea,  and  threw  the  onus 

1  Gilb.  Repl.  GO.  Tilkington  u.  Ilastings,  5  Co.  75.  Browne 
v.  Powell,  4  Bing.  230. 

2  1  Yeates  19*7-    Eimnett  v.  Brigga,  1  New  Jersey  53. 

13 


190  THE   TRIAL,    EVIDENCE,   ETC. 

upon  the  defendant.  In  Pennsylvania,1  and  Mary- 
land,2 on  the  contrary,  it  has  been  held  that  this 
plea  throws  the  burden  of  proof  on  the  plaintiff  in 
replevin,  to  prove  property  in  himself.  Possession 
is  prima  facie  evidence  of  title.3 

If  a  person  procures  the  delivery  of  goods  under 
a  fictitious  pretext  of  a  purchase  upon  credit,  with- 
out intending  that  the  seller  shall  be  paid  for  them, 
this  is  such  a  fraud  as  will  vitiate  the  sale,  and 
prevent  the  property  from  being  changed  by  the 
pretended  purchase.4  In  order  to  prove  such  a 
fraud,  it  is  not  absolutely  necessary  to  prove  a 
false  pretence,  or  other  direct  artifice,  in  respect  to 
the  individual  purchase  sought  to  be  avoided. 

1  Marsh  v.  Pier,  4  Rawle  283.  Clemson  v.  Davidson,  5  Binn. 
399.     Mackinley  v.  M'Gregor,  3  Whart.  398. 

2  6  Harris  &  Johns.  4*11. 

9  Lynch  v.  Welsh,  3  Barr  297.  Johnson  v.  Neale,  6  Allen 
227.  Simcoke  v.  Frederick,  1  Ind.  54.  Ingersoll  v.  Ernmerson, 
I  Ind.  16.    Chambers  v.  Hunt,  2  New  Jersey  552. 

*  Noble  v,  Adams,  7  Taunt.  59.  Abbotts  v.  Barry,  5  Moore 
98.  Peer  v.  Humphrey,  2  Ad.  &  El.  495.  Earl  of  Bristol  v. 
Wilsmore,  1  B.  &  0.514.  2  D.  &  R.  755.  Reed  v.  Hutchin- 
son, 3  Camp.  352.  Ferguson  v.  Carrington,  9  B.  &  C.  59. 
Taylor  v.  Plumer,  3  M,  &  Selw.  562  ;  1  M.  &  Selw.  517.  Irving 
v.  Motley,  7  Bing.  543.  Bufnngton  v.  Gerrish,  15  Mass.  156. 
Palmer  v.  Hand,  13  Johns,  434.  Mowry  v.  Walsh,  8  Cow.  238. 
Williams  v.  Merle,  11  Wend.  80.  Root  tv  French,  13  Wend. 
.570.    Hodgden  v.  Hubbard,  18  Vt.  504. 


THE   TBIAL,    EVIDENCE,    ETC.  191 

It  maybe  shown  that  the  transaction  immedi- 
ately in  issue  was  one  of  a  series  of  acts,  which, 
taken  together,  evince  the  existence  of  a  precon- 
ceived design  to  obtain  possession,  without  paying 
for  them,  of  a  quantity  of  goods,  of  which  those  in 
question  are  a  part.  Thus  it  may  be  shown  thai 
the  quantity  of  goods  purchased  on  credit  from 
many  persons  was  inordinately  large,  in  proportion 
to  the  regular  purposes  of  the  apparent  business  of 
the  party  obtaining  them  ;  that  they  were  not  kept 
or  dealt  with  in  a  place  or  in  a  manner  to  indicate 
that  they  had  been  fairly  acquired,  for  the  purpose 
of  regular  business;  that  forced  sales  were  made 
at  an  under  value,  of  goods  bought  shortly  before 
upon  credit ;  that  the  subsequent  conversations  and 
deportment  of  the  party  were  indicative  of  a  design 
to  evade  payment,  and  to  make  unjust  appropria- 
tions of  the  property.1  The  effect  of  such  evidence 
is  for  the  jury.  But  this  doctrine  ought  not  to  be 
extended  so  far  as  to  enable  the  original  vendor, 
who  has  been  imposed  upon,  to  follow  goods  into 
the  hands  of  purchasers  who  have  become  inte- 
rested in  them,  bona  fide,  in  the  regular  course  of 
business.1 


1  Mackinley  v.  M'Gregor,  3  Whart.  370.  Rowley  v.  Bigelow, 
12  Pick.  307.  Buflington  v.  Gerrish,  L5  Mass.  156.  Mowrey  v. 
Walsh,  8  Cow.  238.     Knowles  v.  Lord,  4  Whart.  500. 


192  THE    TRIAL,    EVIDENCE,    ETC. 

A  verdict    and    judgment  between  the   same 
parties  or  their  privies,  on  the  same  subject  matter, 
whether  in  the  same  or  in  a  different  form  of  ac- 
tion, is  admissible  and  conclusive.     Therefore,  if 
P.  brings  an  action  for  the  price  of  goods  against 
N.,  the  record  of  the  judgment  is  admissible  and 
conclusive  on  the  issue  of  property,  in  replevin  for 
the  same  goods,  brought  by  P.  against  a  purchaser 
under  N. ;  and  this,  whether  the  judgment  be  for 
the  plaintiff  or  the  defendant  in  the  first  action. 
It  need  not  be  specially  pleaded,  but  under  the 
general  plea  of  property  is  admissible  and  conclu- 
sive ;T  though  it  is  sometimes  held  that  to  be  con- 
clusive  it   should  be   specially  pleaded  in  bar.2 
And  where  goods  have  been  taken  on  replevin  in 
one  state,  and  removed  by  the  plaintiff  to  another, 
and  the  defendant  in  the  original  suit,  or  one  claim- 
ing under  him,  seeks  to  regain  the  possession  of 
the  goods  by  a  counter  replevin  in  the  new  juris- 
diction, the  record  of  the  prior  replevin  may  be 
given   in   evidence   under   the   plea  of  property, 
without  being  specially  pleaded,  and  will  entitle 

1  Marsh  v.  Pier,  4  Rawle  273.     Penrose  v.  Green,  1  Miss. 
774.     Bower  v.  Tallman,  5  W.  &  S.  556. 

2  Cleaton  v.  Chambliss,  6  Randolph  86.     Souter  v.  Beymore, 
7  Barr  417. 


THE    TRIAL,    EVIDENCE,    ET<  .  193 

the  defendant  to  a  verdict.1  In  Lowry  v.  Hall, 
C.  J.  Gibson  assigns  as  one  reason  for  this  the 
fact,  that  the  law  requires  a  present  right  of  pos- 
session to  support  a  replevin,  and  argues  that  the 
law  has  placed  the  present  right  of  possession  with 
him  to  whom  it  has  caused  the  property  to  be 
delivered.  Hall  v.  Lowry  is  not  referred  to  by 
judge  or  counsel  in  the  case  of  Lovett  v.  Burkhurst, 
in  which  the  contrary  rule  seems  to  be  laid  down.1 
Under  this  plea  the  defendant  will  not  be  allowed 
to  prove  that  he  has  made  advances  on  the  goods 
as  factor,  in  order  to  establish  a  special  property 
in  them  by  way  of  lien.2 

Where  the  property  has  been  delivered  to  the 
plaintiff,  and  the  jury  find  for  him,  they  should 
assess  the  damages  for  the  detention,  and  he  is 
entitled  to  compensation  for  any  deterioration  in 
value  of  the  goods  replevied,  while  they  were  in 
the  hands  of  the  defendant,3  and  also  for  his  time 
lost  and  expense  incurred  in  searching  for  his 
property,4  and  to  the  hire  of  slaves.4     Where  the 

1  Lowry  v.  Hall,  2  W.  &  S.  129.  Morris  v.  De  Witt,  5 
Wend.  71.  Taylor  v.  Royal  Saxon,  1  Wall.  Jr.  331.  But  sec 
Lovett  v.  Burkhurst,  8  Wright  174. 

»  Buckley  v.  Handy,  2  Milea  440. 

3  Gordon  v.  Jenney,  10  Mass.  465. 

4  Bennett  v.  Lockwood,  20  Wend.  223.  Dorsey  v.  Gassa- 
way,  2  Har.  &  Johns.  413. 


194  THE    TRIAL,    EVIDENCE,    ETC. 

property  has  not  been  delivered  to  him,  the  jury 
should  also  find  the  value  of  the  property.  In  this 
case  the  damages  for  detention  are  usually  interest 
on  the  value  from  the  time  of  taking,  but  in  pro- 
per cases  exemplary  damages  may  be  given.1 

If  the  plaintiff  intends  to  take  a  verdict  under 
the  statute  17  Car.  II.,  he  must  see  that  the  jury 
find  distinctly  the  amount  of  the  rent  arrear,  and 
also  the  value  of  the  distress.  Both  branches  are 
absolutely  necessary  to  entitle  him  to  a  judgment 
on  the  verdict  under  the  statute. 

The  verdict  for  the  defendant  is  simply  for  the 
defendant,  assessing  damages  for  the  unjust  cap- 
tion and  detention  under  the  writ.  The  jury 
should  not  value  the  property  when  they  find  for 
the  defendant.1  This  rule  has  an  exception  in  New 
Hampshire,  where  the  judgment  of  retorno  hab- 
endo  seems  to  be  abolished.  And  in  Delaware,  in 
some  cases,  the  defendant  is  entitled  to  recover 
the  value  of  the  property  replevied  in  damages.2 

In  Michigan,  Tennessee,  and  Arkansas,  under 
their  statutes,  the  defendant  is  entitled  to  have 

1  M'Donald  v.  Scaife,  1  Jones  385.  Balsley  v.  Hoffman,  1 
Harris  603 ;  Schofield  v.  Ferrers,  10  Wright  438 ;  Jenkins  v. 
Steanka,  19  Wis.  126. 

2  Easton  v.  Wortlvington,  5  S.  &  R.  132.  See  post,  Ch. 
"  Judgment  in  Replevin." 


THE    TRIAL,    EVIDENCE,    ETC.  L95 

the  value  of  the  goods,  and  damages  for  their  de- 
tention, found  by  the  jury.  In  Tennessee,  the 
damages  are  to  be  assessed  at  six  per  cent,  on  the 
value  from  the  time  of  taking.  In  Michigan,  dam- 
ages may  be  given  to  any  amount  not  exceeding 
fifty  per  cent. 

Where  the  goods  have  been  delivered  to  the 
plaintiff  in  replevin,  he  will  not  be  allowed  to  dis- 
continue, and  there  may  be  cases  in  which  the 
same  rule  would  be  adopted  where  the  goods 
remained  with  the  defendant.  The  avowant, 
though  an  actor,  cannot  discontinue.1  But  it 
seems  the  plaintiff  is  not  obliged  to  take  a  verdict, 
but  may  suffer  a  non-suit.2  If  he  does,  the  defend- 
ant may  take  an  assignment  of  the  bond.  The 
defendant,  however,  cannot  non-suit  the  plaintiff, 
because  he  neglects  to  have  his  case  put  down  for 
trial.3 

1  Broom  v.  Fox,  2  Yeates  530.  Long  v.  Backeridge,  1  Str. 
100,  112. 

-  Murgatroyd  v.  M'Clure,  4  Pall.  342.  Gibbs  v.  Bartlett, 
2  W.  &  S.  33.     Berghoff  v.  Heckwolf,  26  Mo.  51 1. 

3  Jones  v.  Concannon,  3  T.  R.  661.  Barrett  v.  Forrester,  1 
Johns.  Cas.  247.     Poltz  v.  Curtis,  9  Wend.  497. 


CHAPTER   XI. 


OF    THE    JUDGMENT. 


The  judgment  in  replevin  is  a  matter  of  some 
nicety,  and  should  always  be  entered  under  the 
direct  supervision  of  counsel.  Where  the  pro- 
perty has  been  delivered  to  the  plaintiff  in  the  re- 
plevin, and  he  succeeds,  he  has  judgment  in  his 
favor,  with  damages  for  the  detention.  If  this 
judgment  be  upon  demurrer,  the  amount  of  the 
damages  must  be  ascertained  by  a  writ  of  inquiry. 
If  on  verdict,  the  jury  assess  the  damages.1  Com- 
pensation for  time  lost,  and  expense  incurred  in 
searching  for  property  wrongfully  taken  or  de- 
tained, ought  to  be  included  in  the  sum  found.2 
If  the  defendant  claims  property,  and  puts  in  a 
claim  property  bond,  by  which  the  delivery  of  the 
property  to  the  plaintiff  is  prevented,  and  the  issue 
of  property  is  found  in  favor  of  the  plaintiff,  he 
has  judgment  in  his  favor  for  the  value  of  the 
goods  which  the  jury  must  find,  and  damages  for 

1  Gilb.  Repl.  160. 

2  Bennett  v.  Lockwood,  20  Wend.  223. 


OF   THE   JUDGMENT.  L97 

the  detention.     And  such,  it  is  apprehended,  must 
be  the  judgment  for  the  plaintiff  in  all  cases  where 

the  goods  have  not  been  delivered  to  him  by  the 
sheriff  in  the  first  instance.1 

If  the  plaintiff  declared  in  the  detinet,  and  the 
defendant  appears  and  makes  default,  the  plaintiff 
shall  have  judgment  to  recover  all  in  damages,  as 
well  the  value  of  the  chattels  as  damages  for  tak- 
ing them.2  And  this,  it  is  said,  is  a  shorter  way 
than  to  sue  a  withernam  and  capias  for  a  return  of 
the  beasts.3 

The  186th  section  of  the  Code  of  Procedure  in 
New  York  seems  to  contemplate  a  judgment  of 
retorno  habendo  in  favor  of  the  plaintiff  in  such  a 
case,  though  no  provision  is  made  for  entering 
such  a  judgment. 

The  judgment  for  the.  defendant  at  the  common 
law  is  pro  retorno  habendo.     And,  it  is  said,  if  the 

1  GUI'.  Repl.  126.  Bro.  Abr.  Repl.  15,  p.  208.  Easton  '•. 
Worthington,  5  S.  &  R.  130.  Etter  v.  Edwards.  4  Watts  68. 
Moore  v.  Shenk,  3  Barr  20.  Philips  v.  Harriss,  3  J.  J.  Mar- 
shall 121.  Fisher  r.  Whoollery,  1  Casey  19*7.  Frazer  u.  Fred- 
crick's,  4  Zabr.  102. 

•-'  Fitz.  X.  B.  159,  C.  7th  edit.  Easton  o.  Worthington,  5  S. 
A  It.  L31.  Marsh  u.  Pier,  t  Rawle  290.  Hosack  v.  Weaver, 
1  Yeates  178.     Eardy  v.  Metzgar,  2  Xeates  347. 

3  Gilb.  Repl.  126. 


198  OF    THE    JUDGMENT. 

defendant  avows,  and  hath  judgment,  he  shall 
have  return  of  the  beasts  awarded;  because  the 
avowry  allows  the  caption,  but  avoids  the  injustice 
thereof,  by  showing  he  had  good  cause  of  taking 
such  distress ;  and,  consequently,  if  such  cause  of 
caption  be  approved  of  by  the  court,  they  must,  in 
justice,  return  the  pledge  to  the  avowant.1  But  on 
tender  or  payment  of  damages,  satisfaction  would 
be  entered  on  the  judgment,  or  the  plaintiff  might, 
after  the  goods  returned,  bring  detinue  on  tender  of 
damages,  because  notwithstanding  the  judgment 
for  return  irreplevisable,  the  goods  still  remain  as 
pledge :  and  if  the  defendant  refuse  to  make  resti- 
tution of  the  pledge,  upon  tender  of  the  rent,  his 
detention  then  is  unlawful.2 

In  Delaware,  on  an  avowry  for  rent,  the  jury 
find  the  sum  due  for  rent  arrear,  and  judgment  is 
given  for  any  sum  so  found  or  ascertained,  as  debt, 
with  costs  of  suit ;  and  like  execution  is  had  as 
on  judgments  for  debt:3  in  that  state  interest  is 
not  allowed  on  rent  arrear.4 

Where  the  goods  have  not  been  taken  by  way 
of  distress,  but  the  action  is  founded  on  the  right 

1  Gilb.  Repl.  16T, 

2  Gilb.  Repl.  172.     Easton  v.  Worthington,  5  S.  &  R.  132. 

3  Clark  v.  Adair,  3  Harring.  113. 

i  Caldwell  v.  Cleadon,  3  Harring.  420. 


OF    THE    JUDGMENT.  199 

of  property,  and  the  goods  have  been  delivered  on 
the  replevin  to  the  plaintiff,  and  there  is  a  verdict 
for  the  defendant,  he  shall  have  judgment  pro  re- 
torno  habendo,  without  an  avowry,  because  the 
finding  of  property  in  the  defendant  destroys  all 
right  in  the  plaintiff,  and  if  he  have  no  right  he 
ought  to  have  no  benefit  from' his  unjust  com- 
plaint ;  and,  therefore,  the  court  award  restitution 
to  the  defendant,  out  of  whose  possession  the 
goods  were  taken:1  and  so  of  the  judgment  on 
all  pleas  that  disaffirm  property  in  the  plaintiff. 
If  the  jury  find  the  value  of  the  property,  it  is 
merely  surplusage,  and  may  be  disregarded  in  en- 
tering the  judgment,  which  should  be  a  judgment 
of  retorno  habendo.2 

But,  according  to  Sir  Matthew  Hale  in  his  Com- 
mentary on  Fitzherbert,  the  jury  would  have  done 
right  in  valuing  the  property,  if  the  beasts  had 
died  after  the  caption,  or  were  sold,  so  that  the  de- 
fendant could  not  have  a  return,  in  which  case  he 
would  be  entitled  to  recover  all  in  damages.3  In 
a  case  in  Delaware  in  which  corn  had  been  reple- 

1  Broom  et  al.  v.  Fox,  2  Yeates  530.  Easton  v.  Worthing- 
ton,  5  S.  &  R.  132.     Moore  v.  Shenk,  3  Barr  10. 

2  Easton  v.  Worthington,  5  S.  &  R.  132. 
s  Fitz.  N.  B.  159,  note  c.  Ilale's  edition. 


200  OF    THE   JUDGMENT. 

vied,  it  was  held  this  was  the  true  course  to  pursue 
on  a  verdict  for  the  defendant  on  a  plea  of  pro- 
perty ;  the  article  being  perishable  in  its  nature, 
the  presumption,  unless  the  contrary  was  shown, 
was,  that  it  could  not  be  delivered  on  the  retorno 
habendo,  and  therefore  judgment  should  be  given 
for  the  defendant  for  its  value.1 

Under  the  statutes  of  New  Hampshire  there  is 
no  judgment  of  retorno  habendo ;  but  on  a  verdict 
for  defendant  the  jury  are  required  to  find  the 
value  of  the  property  in  damages,  for  which  the 
defendant  is  entitled  to  judgment  and  execution 
in  the  ordinary  form.2  A  like  judgment  for  the 
defendant  is  allowed  by  the  statutes  of  Maine,  Ver- 
mont, Massachusetts,  New  York,  Kentucky,  and 
Arkansas  sometimes  in  the  discretion  of  the  court 
and  sometimes  of  the  defendant. 

The  law,  as  held  in  Delaware,  has  some  advan- 
tages over  that  of  Pennsylvania,  as  laid  down  in 
Easton  v.  "Worthington,  if  the  doctrine  of  that  case 
is  to  be  considered  as  restricting  the  judgment  for 
the  defendant,  in  all  cases,  to  a  judgment  of  retorno 
habendo.     The  Delaware  law  avoids  the  delay  and 

1  Clark  v.  Adair,  3  Harring.  113. 

2  Bell  v.  Bartlett,  1  N.  Hamp.  178. 


OF    THE    JUDGMENT.  201 

expense  incident  to  a  proceeding  on  the  bond, 
where  the  plaintiff  has  the  means  of  satisfying  the 
judgment:  a  great  point,  as  the  judgment  of  re- 
torno  habendo  is  practically  of  little  nse  in  obtain- 
ing a  restitution  of  the  property  in  specie,  and 
after  a  proceeding  on  the  bond,  a  sum  for  damages 
is  all  that  the  defendant  receives. 

If  the  defendant,  by  his  pleading,  admits  the 
property  to  be  in  the  plaintiff,  he  cannot  have  a 
judgment  of  retorno  habendo  without  an  avowry 
or  cognizance,  or  a  suggestion  in  the  nature  of  an 
avowry  or  cognizance,  because  he  leaves  the  plain- 
tiff a  right  to  retain  his  goods,  when  he  neither 
denies  the  property  to  be  in  the  plaintiff,  nor  shows 
any  cause  why  he  should  take  them  as  a  pledge.1 
If  the  tenant  offers  his  rent  at  the  time  of  his  dis- 
tress taken,  or  before  impounding,  and  the  lord 
refuse  to  accept  it,  he  shall  never  after  have  return 
of  the  beasts,  though  the  rent  be  in  arrear ;  because 
the  distress  is  but  a  pledge  for  the  rent,  and  when 
the  rent  is  offered,  the  pledge  ought  to  be  restored ; 
consequently,  the  court  will  never  award  the  re- 
turn of  the  pledge  to  the  lord,  which  he  ought  to 

1  Gilb.  Kepi.  108.  Wilk.  Repl.  02.  Simpson  v.  M'Farland, 
18  Pick.  427.  Whitwell  v.  Wells,  2 1  Pick.  25.  Bonner  r.  Cole- 
man, 3  B\  Munroe  464. 


202  OF    THE    JUDGMENT. 

have  restored  to  the  plaintiff  before  the  replevin 
was  taken  out.1 

"Where  the  defendant  has  removed  the  sroods,  so 
that  they  are  not  taken  on  the  replevin,  or  where 
he  retains  them  by  a  claim  of  property,  he  is  not 
entitled  to  a  judgment  of  retorno  habendo.  That 
judgment  has  no  existence  except  in  a  case  where 
the  goods  have  been  replevied  and  the  verdict  is 
for  the  defendant.  If  such  judgment  is  entered,  it 
is  erroneous,2  and  a  remittitur  of  the  damages  will 
not  cure  the  error,  as  that  is  no  release  of  the  judg- 
ment for  a  return.2 

By  the  statute  7  Henry  VIII.,  ch.  4,  the  defend- 
ant in  replevin  is  entitled  to  damages  for  the  unjust 
detention  ;  when  the  cause  comes  to  trial  the  jury 
assess  these  damages,  and  they  form  part  of  their 
verdict.3  "When  the  judgment  is  by  default,  a  writ 
of  inquiry  must  be  issued  to  ascertain  the  damages 
and  costs,  upon  the  return  whereof,  final  judgment 
is  entered  up  for  the  defendant  to  recover  as  well 
the  damages  and  costs  assessed  by  the  jury  as  the 

1  Gilb.  Repl.  1G9. 

2  Moore  v.  Shenk,  3  Barr  20.  Harrod  v.  Hill,  2  Dana  165. 
Schofield  v.  Ferrers,  10  Wright  438. 

3  1  Wins.  Saund.  195,  n.  3.   Smith  v.  Aurand,  10  S.  &  R,  92. 


OF    THE    JUDGMENT.  203 

costs  adjudged  by  the  court,1  and  this  is  in  addi- 
tion to  the  retorno  habeudo  for  the  goods.1 

In  replevin  for  several  articles  where  the  plea  i- 
property,  and  the  jury  find  property,  in  some  of 
the  articles,  to  be  in  the  plaintiff,  and  in  the  others 
to  be  in  the  defendant,  assessing  to  each  the  proper 
damages  ;  separate  judgments  must  be  entered  in 
favor  of  each.2  If  the  articles  were  delivered  to 
the  plaintiff,  the  judgment  in  his  favor  will  be  the 
ordinary  judgment  for  the  plaintiff,  and  will  cover 
the  damages  found  for  the  caption  and  detention 
of  the  articles,  as  to  which  the  property  has  been 
found  for  him.  The  judgment  for  the  defendant 
will  be  a  judgment  of  retorno  habendo  for  the 
articles,  the  property  of  which  is  found  in  him, 
together  with  damages  for  their  caption  and  deten- 
tion on  the  writ.3 

The  following  observations,  on  this  subject,  are 
translated  from  Lutwich,  page  1197,  "  I  find  that 
there  is  great  variety,  and  sometimes  (as  it  ap- 
pears) some  contrariety  in  the  judgments  in  re- 

1  1  Wms.  Sauncl.  195,  n.  3.    Smith  o.  Aurand,  10  S.  &  R.  02. 

2  Clark  i'.  Keith,  0  Ohio  R.  72.  Powell  r.  Binsdale,  .">  Mass. 
343.     Poor  v.  Woodburn,  25  Vt.  334. 

3  Winnard  v.  Foster,  Lutw.  1100.  Clark  o.  Keith.  0  Ohio  R. 
72.     Powell  v.  Hinsdale,  5  Mass.  343. 


204  OF    THE    JUDGMENT. 

plevin,  when  part  is  found  by  verdict,  or  ad- 
judged on  demurrer  for  the  plaintiff,  and  part  for 
the  defendant.  As  the  precedents  which  I  have 
met  with  are  in  two  books,  in  private  hands,  and 
it  may  be  of  service  to  others  to  have  an  account 
of  them,  I  insert  a  brief  note  of  them.  More 
especially,  as  I  find  no  similar  judgments  in  any 
other  books  of  precedents. 

In  a  book  printed  in  1655,  called  judgments, 
&c,  or,  commonly,  the  First  Book  of  Judgments, 
page  115,  there  is  a  precedent,  Trin.  9,  Car.  I.  Hot. 
1360,  where,  in  a  replevin  against  A.  and  B.,  ver- 
dict was  obtained  by  the  plaintiff  against  A.,  and 
damages  and  costs  taxed,  and  B.  was  acquitted  of 
the  caption,  and  damages  and  costs  taxed  for  him, 
and  judgment  was  given  for  the  plaintiff  for  his 
damages,  and  costs  taxed  by  the  jury,  and  the 
plaintiff  was  fined  as  to  the  defendant  B.  But  no 
judgment  for  damages  or  costs  was  given  for  him, 
because,  by  the  law,  no  such  damages  and  costs 
are  allowed. 

In  the  same  book,  page  220,  is  another  precedent, 
Trin.  11,  Car.  I.  Rot.  1293,  where  property  in  a 
heifer,  part  of  the  chattels  taken,  was  found  to  be 
in  defendant,  and  damages  and  costs  taxed  by  the 
jury  for  him.     And  the  other  issues  were  found 


OF   THE   JUDGMENT.  205 

for  the  plaintiff,  and  damages  and  costs  taxed  for 
him.  But  no  regard  was  bad  to  the  damages  and 
costs  taxed  by  the  jury  for  the  heifer,  because  such 
damages  and  costs  are  not  allowed  by  the  law,  and 
the  plaintiff  had  judgment  for  his  damages,  and 
costs  taxed  for  him,  &c.  And  the  defendant  had 
judgment  given  for  him  to  recover  his  damages, 
by  reason  of  the  premises,  and  in  such  sum,  by  the 
discretion  of  the  justices,  to  the  defendant  on  his 
request.  And  it  was  sustained,  according  to  the 
form  of  the  statute,  and  so  adjudged  by  the  court, 
which  (as  it  seems)  is  to  be  intended  of  the  statute 
4  Jac.  L,  ch.  3,  2  Cro.  520.  Samuel  and  Hodder's 
case,  p.  204. 

• 
And  in  another  book  called  A  Second  Book  of 
Judgments,  &c,  p.  204,  !No.  9,  there   is   a  pre- 
cedent where  judgment  was  given  for  the  plain- 
tiff* for  damages  and  costs  taxed  by  the  jury,  when 
the  property  of  part  of  the  goods  was  found  to  be 
in  the  plaintiff'  as  administrator,  and  for  the  resi- 
due, that  the  property  was  in  the  defendant,  and 
for  this  residue  the  plaintiff  was  amerced,  and  the 
defendant  acquitted.     But  no  return  was  adjudged 
to  him,  or  damages  and  costs  given  to  him,  but  it 
does  not  appear  whether  this  judgment  was  before 
or  since  the  statute  4  Jac.  I.,  ch.  3. 
14 


206  OF   THE    JUDGMENT. 

And  in  the  same  book,  page  210,  No.  28,  is 
another,  Hill.  14  Eliz.,  Rot.  1502,  where  an  issue, 
as  to  part  of  the  goods,  was  taken  on  non  cepit, 
and  another  issue  as  to  the  residue ;  and  the  issue 
on  non  cepit  was  found  for  the  plaintiff,  and  the 
other  issue  for  the  defendant;  and  several  judg- 
ments were  given  for  each  for  the  damages  and 
costs  assessed  by  the  jury,  before  the  Stat.  4  Jac. 
C.  3. 

And  on  the  same  page,  No.  29,  Pach.  36  Eliz., 
Rot.  1316,  there  is  a  precedent  where  an  avowry 
was  for  a  rent  and  an  amercement,  and  the  verdict 
was  for  the  defendant,  as  to  the  rent,  and  for  the 
plaintiff  as  to  the  amercement ;  and  judgment  was 
given  that  the  plaintiff  should  take  nothing  as  to 
the  rent,  and.  that  the  defendant  should  be  amerced 
as  to  the  amercement,  and  that  the  defendant 
should  have  a  return,  and  his  damages  assessed 
by  the  jury  ;  but  no  damages  or  costs  were  given 
to  the  plaintiff. 

In  the  same  book,  page  211,  No.  31.  There  is 
a  precedent,  Mick.  43  and  44  Eliz.,  Rot.  918,  be- 
tween Parsham  v.  Norton,  in  which  a  joint  avowry 
was  made  for  the  taking  of  all  the  beasts,  for  10s.  for 
an  amercement,  12s.  Id.  for  rent,  and  24s.  2d.  for  re- 
lief; and  for  the  relief  and  amercement  two  several 


OF    THE    JUDGMENT.  207 

demurrers  were  joined,  and  an  issue  taken  as  to  the 
rent ;  and  on  the  demurrer  as  to  the  amercement 
judgment  was  for  the  plaintiff.  And  as  to  the  re- 
lief for  the  defendant,  and  he  had  judgment  for  a 
return  as  to  the  24s.  for  relief;  and  the  plaintiff 
recovered  no  costs  or  damages,  because  the  avowry 
was  joint,  and  the  defendant  had  cause  of  distress. 

And  in  the  same  book,  page  215,  No.  40,  Trin. 
41  Eliz.,  Rot.  1812,  where  two  several  avowries 
were  made  for  two  several  causes,  one  for  an 
amercement  in  a  court  leet,  the  other  for  another 
cause,  and  the  issue  oil  the  amercement  was  found 
for  the  avowant,  and  it  was  adjudged  that  he 
should  have  a  return  of  his  goods  taken  on  the 
amercement,  but  no  damages  and  costs,  because 
they  were  not  due  by  the  statute  on  an  avowry  for 
an  amercement  in  a  court  leet.  The  other  issue 
was  found  for  the  plaintiff,  and  he  had  judgment 
for  his  costs  and  damages  assessed  by  the  jury. 

N".  B. — The  judgment,  in  the  principal  case  of 
"Winnard  v.  Foster,  for  the  plaintiff  and  defendant 
to  have  several  costs  is  different  from  that  of  any 
of  the  precedents  above  mentioned,  because  the 
avowry  is  joint,  and  a  joint  issue  taken  as  to  the 
property  in  all  the  goods,  and  as  to  part,  the  pro- 
perty was  found  in  defendant,  and  as  to  part,  in 
plaintiff." 


208  OF    THE    JUDGMENT. 

By  the  17  Charles  II.,  ch.  7,  it  is  enacted  that 
"  "Wherever  the  plaintiff  in  replevin,  upon  a  dis- 
tress for  rent,  shall  be  non-suit  before  issue  joined 
in  any  court  of  record,  the  defendant  making  a 
suggestion,  in  nature  of  an  avowry  or  cognizance 
for  the  rent  in  arrear,  to  ascertain  the  court  of  the 
cause  of  the  distress — the  court,  upon  his  prayer, 
shall  award  a  writ  to  the  sheriff,  to  inquire  of  the 
sum  in  arrear,  and  the  value  of  the  goods  or  cattle 
distrained,  and  that  upon  the  return  of  such  inqui- 
sition, the  defendant  shall  have  judgment  to  re- 
cover against  the  plaintiff  the  arrearages  of  rent, 
in  case  the  goods  or  cattle  distrained  shall  amount 
unto  that  value;  and  in  case  they  shall  not  amount 
to  that  value,  then  so  much  as  the  value  of  the 
goods  or  cattle  distrained  shall  amount  unto  with 
his  full  costs  of  suit;  and  shall  have  execution  for 
the  same  by  fieri  facias,  elegit,  or  otherwise." 
And  by  the  same  statute,  the  like  proceeding  may 
be  had  where  judgment  is  given  for  the  avowant, 
or  for  him  that  maketh  cognizance  for  any  kind  of 
rent.  And  it  is  thereby  further  enacted,  that  "in 
case  the  plaintiff  shall  be  non-suit  after  cogni- 
zance or  avowry  made  and  issue  joined,  or  if  the 
verdict  shall  be  given  against  the  plaintiff,  then 
the  jurors  that  are  impanelled  to  inquire  of  such 
issue,  shall,  at  the  prayer  of  the  defendant,  inquire 
concerning  the  sum  in  arrear,  and  the  value  of  the 


OF    THE    JUDGMENT.  209 

goods  or  cattle  distrained.  And  thereupon  the 
avowant,  or  he  that  maketh  cognizance,  shall  have 
the  like  judgment,"  &c.,  as  before.1  Under  this 
statute  the  defendant  or  avowant  is  still  entitled 
to  his  judgment  of  retorno  habendo,  for  the  sta- 
tute has  not  altered  the  judgment  at  common  law, 
but  has  only  given  a  further  remedy  to  the  avow- 
ant. When  the  jury  who  try  the  issue  omit  to 
inquire  of  the  rent  in  arrear,  or  of  the  value  of 
the  goods,  pursuant  to  the  statute,  no  writ  of  in- 
quiry can  be  afterwards  awarded  to  supply  the 
omission.2 

If  the  jury  proceed  under  the  act,  they  must 
not  only  find  the  amount  of  the  rent,  but  the  value 
of  the  goods.  They  must  find  both,  for  the  act 
must  be  strictly  complied  with.3  If  through  mis- 
take or  otherwise  any  of  the  requirements  of  the 
statute  are  omitted,  so  that  the  defendant  cannot 
take  judgment  under  it,  he  is  still  entitled  to  his 
judgment  of  retorno  habendo  at  common  law.4 

1  Gilb.  Repl.  163,  1G4. 

2  Gilb.  Repl.  165.  1  Lev.  255.  1  Salk.  205.  Cas.  Temp. 
Hardw.  297,  298.  1  Wms.  Saund.  195,  b.  n.  3.  Rees  v.  Mor- 
gan, 3  T.  R,  349.     Williams  v.  Smith,  10  S.  &  R.  206. 

3  Williams  v.  Smith,  10  S.  &  R,  206. 

*  Gilb.  Repl.  165.  1  Lev.  255.  1  Salk.  205.  Cas.  Temp. 
Hardw.  297,  298.  1  Wms.  Saund.  195,  b.  n.  3.  Rees  u.  Mor- 
gan, 3  T.  R,  349.  Williams  v.  Smith,  10  S.  &  R.  206.  Gamon 
v.  Jones,  4  T.  R.  509. 


210  OF   THE   JUDGMENT. 

We  are  told  by  Kennedy,  Justice,  in  Quinn  v. 
Wallace,  6  Wharton  458,  that  this  statute  has 
never  been  in  force  in  Pennsylvania,  either  by 
adoption  or  otherwise.     The  dicta  of  Gibson,  C. 
J.,  in  Kemmel  v.  Kint,  2  Watts  431,  and  of  Dun- 
can, J.,  in  Williams  v.  Smith,  10  S.  &  K.  20G, 
would  seem  to  imply  the  contrary.     The  statute 
is  not  reported  by  the  judges.     Ever  since  the 
decision  in  Albright  v.  Pickle,  4  Yeates  264,  how- 
ever, the  jury  has  been  allowed,  in  an  issue  of  no 
rent  in  arrear,  to  find  the  amount  of  rent  in  arrear, 
and  also  to  value  the  goods.     This  is  the  prevail- 
ing practice  in  the  city  and  county  of  Philadel- 
phia.1    Whether  the  statute,  as  such,  is  in  force  or 
not,  its  provisions  seem  to  be  recognized  as  part 
of  the  common  law  of  Pennsylvania. 

Both  parties  in  replevin  are  entitled  to  rules  to 
declare  and  plead,  &c,  as  in  other  actions.  The 
judgment  by  default  for  the  plaintiff,  where  the 
goods  have  been  delivered  to  him,  is  for  damages 
for  the  detention  to  be  ascertained  by  writ  of  in- 
quiry. Where  the  goods  have  not  been  delivered, 
it  is  for  the  value  of  the  goods  and  damages 
for  the  detention  to  be  ascertained  in  the  same 
way. 

1  Howard  v.  Johnson,  1  Ash.  58. 


OF    THE    JUDGMENT.  -11 

The  judgment  by  default  in  favor  of  the  defend- 
ant was  at  common  law  a  judgment  of  retorno 
haoendo,1  to  which  the  statute  7  Hen.  YIIL,  eh.  1. 
added  damages  for  the  unjust  caption  and  deten- 
tion under  the  writ.  The  judgment  of  retorno 
habendo  is,  that  the  plaintiff  take  nothing  by  his 
writ,  but  that  he  and  his  pledges  to  prosecute  be 
in  mercy,  and  that  the  defendant  have  a  return  of 
the  goods,  &c.j  and  that  he  recover  his  damages 
on  occasion  of  the  premises  according  to  the  form 
of  the  statute,  followed  by  an  award  of  a  writ  1st, 
de  retorno  habendo,  and  2d,  to  inquire  of  the  dam- 
ages ;  or  the  defendant  may  enter  remittitur  damna 
for  the  damages,  and  by  the  final  judgment  on 
those  statutes,  claim  his  costs  only.2  The  statute 
7  H.  YIIL,  ch.  4,  is  reported  by  the  judges  to  be 
incorporated  in  Pennsylvania. 

The  statute  17  Car.  II.,  ch.  7,  applies  to  four 
cases.  1st.  Where  the  plaintiff  shall  be  non-suit 
before  issue  joined,  in  which  case,  the  statute, 
except  where  the  non  pros,  is  after  avowry  or  cog- 
nizance, requires  a  suggestion  in  the  nature  of  an 
avowry  or  cognizance.  This  is  usually  made  after 
judgment.3     After  such  judgment  and  suggestion, 

1  Comyn  Dig.  Pleader,  3  K.  30. 

■  Wilk.  Repl.  72. 

3  Wilk   Repl.  68      Comyn  Dig.  Pleader,  3  K.  30. 


212  OF    THE    JUDGMENT. 

a  writ  of  inquiry  issues,  to  inquire  of  the  sum  in 
arrear  at  the  time  of  the  distress,  and  of  the  value 
of  the  goods  distrained;  and  after  the  writ  of  in- 
quiry is  executed,  the  defendant  is  entitled  to  a 
final  judgment,  to  recover  the  arrearages  of  such 
rent,  if  the  goods  be  of  that  value,  or  to  the  value 
of  the  goods,  if  less  than  the  rent.  2d.  When  the 
plaintiff  shall  be  non-suit  after  cognizance  or 
avowry,  and  issue  joined.  3d.  When  there  shall 
be  a  verdict  against  the  plaintiff,  the  jury  impa- 
nelled to  try  the  issue,  and  they  only,  at  the 
prayer  of  the  defendant,  may  in  this  and  the  pre- 
ceding case,  where  the  non-suit  is  at  the  trial, 
inquire  of  the  arrears  of  rent,  and  the  amount  of 
goods,  and  find  the  same  by  their  verdict.  The 
judgment  is  in  both  cases  for  the  arrears  of  rent, 
or  so  much  thereof  as  the  goods  distrained  shall 
amount  to.1  4th.  Where  there  shall  be  judgment 
on  demurrer  against  the  plaintiff,  there  must  be  a 
writ  of  inquiry ;  but  the  inquiry  need  not  be  of 
the  arrears  of  rent,  but  of  the  goods  only,  for  the 
statute  directs  the  writ  of  inquiry  to  be  awarded 
to  inquire  only  of  the  value  of  the  distress ;  the 
judgment  in  such  case  is  to  recover  the  arrears  of 
rent,  if  the  goods  or  cattle  amount  to  that  value ; 
if  not,  the  amount  of  the  goods  or  cattle  distrained. 

1  Wilk.  Repl.  69.     Comyn  Dig.  Pleader,  3  K.  30. 


<>|-    THE    JUDGMENT.  213 

The  costs  in  all  these  cases  are  stated  in  the  sta- 
tute to  be  full  costs  of  suit. 

If  there  is  a  service  of  the  writ,  and  the  defend- 
ant does  not  appear  within  the  regular  time,  there 
will  be  judgment  for  the  plaintiff  by  default;1  or 
the  better  practice  is  to  enter  a  common  appear- 
ance for  the  defendant,  and  rule  him  to  plead.2 

The  statute  in  Maryland  provides  that  if  the  de- 
fendants shall  be  returned  summoned,  and  shall 
not  appear  in  person  or  by  attorney  on  or  before 
the  fourth  day  of  the  next  term  to  that  at  which 
the  return  shall  be  made,  the  court  are  authorized 
and  required  to  enter  up  judgment  for  the  plaintiff, 
for  the  property  replevied  and  nominal  damages.3 

If  there  be  error  both  in  the  declaration  and  in 
the  avowry,  the  defendant  shall  not  have  judgment 
for  a  return.4 

The  effect  of  the  judgment  for  the  plaintiff  in 
replevin,  where  the  goods  have  not  been  delivered 

1  James  v.  Moody,  1  II.  Bl.  281. 

2  See  ante,  page  121,  and  post,  Chapter  XV.  Crofut  u. 
Chichester,  3  Phila.  45T. 

3  1  Dorsey's  Laws  of  Maryland,  82T. 

4  Allen  v.  Darley,  1  Show.  09. 


214  OE    THE    JUDGMENT. 

to  him,  and  where  no  claim  property  bond  has  been 
filed,  but  where  he  has  obtained  a  verdict  in  dam- 
ages for  their  value,  is  perhaps  not  settled  in 
Pennsylvania.1 

The  doctrine,  in  England,  is  asserted  to  be,  that 
the  recovery  of  a  judgment  in  trespass,  trover,  or 
replevin,  for  the  value  of  a  specific  article,  changes 
the  property  and  vests  it  in  the  defendant,  without 
regard  to  the  satisfaction  of  the  judgment.2  The 
dictum,  in  Brown  v.  "Watton,  in  which  the  doctrine 
is  asserted  as  regards  the  judgment  in  trepass,  is 
opposed,  by  what  is  said  in  Jenkins'  Centuries,  to 
wit,  "A.  in  trespass  against  B.  for  taking  ahorse, 
recovers  damages,  by  this  recovery  and  execution 
done  thereon,  the  property  of  the  horse  is  vested  in 
B.,  solutio  pretii  emptionis  loco  habetur."3  And 
the  Touchstone  is  to  the  same  purpose,  "  where 
one  doth  take  my  goods  as  a  trespasser,  and  I  re- 
cover damages  for  them  upon  a  suit  in  law ;  in  this 
case  the  law  doth  give  him  the  property  of  the 

1  Taylor  v.  The  Royal  Saxon,  1  Wall.  Jr.  317.  Fisher  v. 
Whoollery,  1  Casey  198.     Lovett  u.  Burkhardt,  8  Wright  174. 

2  Brown  v.  Watton,  Cro.  Jac.  13.  Adams  v.  Bronghton, 
Stra.  1078,  Andr.  18.  Moor  v.  Watts,  1  Ld.  Ray.  613.  Mor- 
ris v.  Robinson,  3  B.  &  C.  196,  per  Littledale,  J.  Key  worth 
v.  Hill,  3  B.  &.  A.  685,  per  Holroyd,  J 

3  Jenk.  4  Cent,  case  88. 


OF   Till':   JUDGMENT.  21."> 

goods,  because  lie  hath  paid  for  them,"*  which  could 
only  be  if  satisfaction  were  had  upon  the  judgment, 
which  would  seem  to  be  the  meaning  of  "  recover 
damages."  In  Adams  v.  Broughton,2  and  in  Bro  w  1 1 
v.  Watton,3  the  doctrine  is  applied  to  trover  ;  but 
these  cases  are  so  brief  as  to  leave  the  reader  in 
doubt,  whether  there  was  not  satisfaction  of  the 
judgment  in  both  instances.  The  report  in  Cro. 
J.  indeed  makes  one  of  the  judges  say,  that  the 
judgment  changes  the  property,  but  it  would  seem 
that  the  defendant  in  the  first  suit  was  actually  in 
execution,  which  was  no  doubt  a  satisfaction.  The 
report  in  Yelvcrton,  it  is  true,  asserts  that  the 
judgment  is  conclusive,  but  apparently  on  other 
grounds  than  a  change  of  property.  Mctcalf,  in  a 
note  to  this  case,  in  his  edition  of  Yelverton,  has 
shown  clearly  that  the  reasoning  in  that  case  is 
fallacious.  In  Moor  v.  Watts,4  Lord  Holt  is  made 
to  say,  "In  replevin  for  cattle  with  adhuc  detinet, 
damages  given  for  the  cattle  will  change  the 
property ;"  but  in  the  report  of  the   same  case  in 

1  Shep.  Touch.  Ch.  9,  of  a  gift,  22?. 

2  Strange  1078.     Andr.  18. 

3  Yelv.  61,  68.  Cro.  Jac.  73. 

4  1  Ld.  Ray.  614.  12  Mod.  428.  In  Knowl.s  r.  Lord, 
4  Whart.  505,  Judge  Sergeant  seems  to  adopt  what  is  said 
in  Lord  Raymond;  but  the  point  was  not  involved,  and  does 
not  seem  to  have  been  argued. 


216  OF    THE    JUDGMENT. 

12th  modern,  the  important  words,  "  on  payment 
thereof,"  occur  between  the  words  "  cattle"  and 
"will:"  thus,  "damages  given  for  the  cattle  on 
payment  thereof  will  change  the  property. 

In  Drake  v.  Mitchell,1  a  case  indeed  arising  ex 
contractu,  Lord  Ellenborough  said,  that  he  always 
understood  the  principle  of  transit  in  rem  judica- 
tam  to  relate  only  to  the  particular  cause  of  action 
in  which  the  judgment  was  recovered,  operating 
as  a  change  of  remedy,  from  its  being  of  a  higher 
nature  than  before ;  and  that  a  judgment  recovered, 
in  any  form  of  action,  was  still  but  a  security  for 
the  original  cause  of  action,  until  it  was  made  pro- 
ductive in  satisfaction  to  the  party ;  and,  until  then, 
it  would  not  operate  to  change  any  other  collateral 
concurrent  remedy  which  the  party  might  have. 
This  is  now  the  recognized  law  in  the  Courts  of 
the  United  States,  New  York  and  Maryland.2  And 
Kent  says,  it  is  the  more  reasonable,  if  not  the 
more  authoritative  conclusion  on  the  question.3 
In  South  Carolina  and  Maine,  the  opposite  doc- 

1  3  East  251. 

2  Curtis  v.  Grout,  6  Johns.  168.  Osterhout  v.  Roberts,  8 
Cowen  43.  Livingston  v.  Bishop,  1  Johns.  290.  Hepburn  v. 
Sewell,  5  Har.  &  Johns.  211.     Lovejoy  v.  Murray,  3  Wall.  1. 

3  2  Kent  Com.  389. 


OF    THE    JUDGMENT.  217 

trine  is  held.1  It  is  doubtingly  held  in  Maine  ;  but 
there  execution  must  be  issued,  which  is  said  to 
be  a  determination  of  the  plaintiff's  election  to 
seek  his  satisfaction  in  that  particular  quarter.2 

In  Pennsylvania  the  question  has  been  ap- 
proached in  several  cases.  First  in  the  case  of 
Floyd  v.  Browne  administrator  of  Truxton.3  This 
was  an  action  of  assumpsit,  against  the  adminis- 
trator of  a  sheriff,  to  recover  a  certain  sum  of 
money,  raised  by  the  sheriff  by  the  sale  of  personal 
property  of  the  plaintiff,  on  an  execution  against 
a  third  party.  Floyd  had  brought  a  previous 
action  of  trespass  against  the  plaintiff  in  the  exe- 
cution and  others,  upon  which  he  had  obtained  a 
verdict,  and  sued  out  execution,  which,  however, 
was  stayed  by  special  injunction.  The  defendant 
pleaded  a  special  plea  of  former  recovery,  which 
set  forth  the  proceedings  in  the  action  of  trespass. 
To  this  plea  the  plaintiff  demurred,  and  the  court 
gave  judgment  for  the  defendant  on  the  demurrer; 
and  on  writ  of  error,  the  supreme  court  affirmed 
the  judgment.     It  is  difficult  to  say  exactly  upon 

1  Rogers  v.  Moore,  1  Rice  GO,  87.     Thompson  v.  Roger-.  2 
Brevard  410.     Carlisle  v.  Burley,  3  Greenl.  250. 

2  White  v.  Philbrick,  5  Greenl.   147.     See  Elliott  v.  Potter, 
5  Dana  300.     Campbell  v.  Phelps,  1  Pick.  62. 

8  1  Rawle  121. 


218  OF    THE    JUDGMENT. 

what  ground  the  case  is  decided.  But  it  seems 
to  rest  principally  on  the  position  that  the  plain- 
tiff having  brought  trespass  in  the  first  instance, 
against  some  of  the  parties,  he  could  not  afterwards 
put  such  a  face  on  the  transaction  as  would  enable 
him  to  support  assumpsit  against  others ;  and  the 
learned  judge  concludes,  "that  having  recovered 
in  trespass,  the  plaintiff  cannot  again  recover  in 
an  action  which  is  not  a  concurrent  remedy;  a 
recovery  in  trespass,  producing  the  same  bar  that 
is  produced  by  a  recovery  in  trover,  against  a  re- 
covery in  assumpsit  of  the  price  of  the  same  goods." 
In  a  word,  that  a  party  cannot  make  the  same  trans- 
action to  suit  his  purpose  at  one  time  a  tort,  and 
at  another  a  contract. 

In  Marsh  v.  Pier,1  Judge  Kennedy  considers  the 
question  at  length,  and  inclines  to  the  opinion 
that,  by  the  English  authorities,  the  property  is 
changed  by  the  judgment.  But  the  question  did 
not  arise. 

In  Fox  v.  The  Northern  Liberties,2  the  question, 
though  not  arising  in  the  case,  is  again  elaborately 
argued,  by  Judge  Kennedy,  and  the  same  opinion 
avowed,  which  he   had   previously  expressed   in 

1  4  Rawle  273.  2  3  W.  &  S.  103. 


OF   THE   JUDGMENT.  219 

Marsh  v.  Pier.  Judge  Kennedy  supports  his 
opinion,  Avith  the  ability  for  which  he  was  so  dis- 
tinguished. But,  as  the  point,  not  being  involved, 
cannot  be  considered  as  settled  iu  that  ease,  it  may, 
perhaps,  be  as  well  to  point  out  what  appear  to  be 
the  defects  in  the  judge's  argument.  After  stat- 
ing that  the  joint  trespassers  are  liable,  either 
jointly  or  severally,  to  the  party  injured,  and  that 
he  may  sue  each  separately,  at  the  same  time,  or 
consecutively,  and  prosecute  his  suit  against  each, 
to  judgment ;  and  having  obtained  judgment 
against  each,  he  has  a  right  to  elect  to  proceed  by 
execution,  to  enforce  payment  of  any  one  of  the 
judgments  he  pleases  ;  and  that  a  judgment  of  re- 
covery against  one  would  not  bar  the  plaintiff  in 
his  action  against  another,  without  payment  or 
satisfaction  having  been  made  to  the  plaintiff  in 
some  way.  He  goes  on,  "but  where  the  trespass 
consists  in  forcibly  taking  the  personal  property 
from  the  owner  thereof,  by  one  who  sells  it  to  a 
third  person,  and  the  owner  sues  the  trespasser, 
and  recovers  judgment  against  him  for  the  value 
of  the  property,  as  also  for  the  tortious  taking  of 
it,  he  cannot,  I  apprehend,  afterwards  either  re- 
take the  property,  or  sue  the  vendee  of  the  tres- 
passer, for,  or  on  account  of  it;  because  his  re- 
covery of  the  judgment  against  the  trespasser,  for 
the  value  of  the  property,  is  regarded  as  the  price 


220  OF    THE    JUDGMENT. 

thereof,  which  he  has  sought  the  law  to  allow  him, 
and  may,  therefore,  be  considered  as  a  sale  and 
transfer  of  his  right  in  the  property  to  the  defend- 
ant." 

"By  obtaining  the  judgment,  he  acquires  a 
right  to  demand  and  receive,  from  the  defendant, 
a  specific  sum  of  money  in  lieu  and  in  satisfaction 
of  his  right  to  the  property,  and  ought  not,  there- 
fore, to  be  permitted  to  seize  or  claim  the  property 

itself  afterwards." 

■ 

This  is  ingenious,  certainly ;  but  as  the  property 
has  been  taken  from  the  plaintiff  against  his  will, 
and  no  price  has  or  can  be  fixed  upon  for  it  by  the 
parties,  the  proceeding  in  the  action  of  trespass 
would  seem  to  resemble  more  the  agreement  for  a 
sale  than  the  sale  itself;  being  the  method  for 
ascertaining  the  price,  when  the  parties  cannot 
agree,  and  resulting  in  what  the  law  might  regard 
as  a  contract  to  sell  for  cash,  at  the  sum  settled  by 
the  judgment.  But,  like  any  other  agreement  for 
a  sale  for  cash,  it  would  be  in  fieri,  and  confer  no 
title  till  the  money  was  paid. 

Besides,  it  is  not  perceived  why  there  should  be 
a  distinction  in  the  effect  of  the  judgment  in  this 
case,  and  the  judgment  against  one  of  several  joint 


OF   THE   JUDGMENT.  221 

trespassers.  In  the  latter  case,  the  judgment,  con- 
fessedly, is  no  defence,  until  satisfaction,  to  any 
number  of  actions  against  others  for  the  same  tres- 
pass. Why  may  it  not  as  well  be  said,  that  the 
judgment  first  obtained,  is  a  compensation  for  the 
injury  which  he  has  sought  the  law  to  allow  him, 
and  may,  therefore,  be  considered  as  a  settlement 
of  the  matter?  By  obtaining  the  judgment,  he 
acquires  a  right  to  demand  and  receive,  from  the 
defendant,  a  specific  sum  of  money  in  lieu  and 
satisfaction  of  his  injury,  and  ought  not,  therefore, 
to  be  permitted  to  seek  redress  from  anybody  else. 

But,  however,  this  theory  of  purchase  and  sale, 
through  the  instrumentality  of  the  court,  may  hold 
in  trespass,  where  the  party  knows,  when  he  begins 
his  action,  that  he  can  only  recover  the  value  of 
the  goods,  not  the  goods  themselves,  it  does  not 
seem  to  apply,  with  equal  force,  to  the  action  of 
replevin,  where  the  plaintiff,  by  his  form  of  action, 
disclaims  any  intention  to  acquiesce  in  the  loss  of 
his  property,  but  goes  expressly  for  a  return  of  it 
in  specie,  which  he  is  only  prevented  from  obtain- 
ing by  the  success  of  the  defendant  in  secreting  it 
from  the  officer.  As  regards  the  purchaser,  the 
hardship  is  no  greater  in  allowing  an  action  to  be 
brought  against  him  when  he  has  purchased  after 
the  commencement  of  the  action  against  the  origi- 
15 


222  OF   THE    JUDGMENT. 

nal  wrong-doer,  than  it  is  in  allowing  such  action 
to  be  brought  against  him  in  the  first  instance, 
which,  without  doubt,  may  always  be  done,  sub- 
ject to  the  exceptions  before  stated  in  chapter 
second. 

The  practical  difficulties  are  strongly  urged  by 
Judge  Kennedy,  in  a  subsequent  part  of  his 
opinion.  The  answer  which  occurs  to  me  is  that 
the  cases  suggested  by  him  must  be  treated  like 
several  judgments  against  joint  trespassers,  the 
satisfaction  of  any  one  of  which  will  discharge  the 
others;  with  the  further  observation,  that  in  reple- 
vin there  seems  to  be  no  objection  to  finding  the 
value  and  damages  in  separate  sums.  The  point 
is  said  by  Judge  Rogers  to  be  no  longer  an  open 
one  in  Pennsylvania.1 

1  Merrick's  Estate,  5  W.  &  S.  17. 


CHAPTER    XII. 

OF  THE  COSTS  IN  REPLEVIN. 

Costs  were  not  recoverable  at  common  law  by 
either  plaintiff  or  defendant.  The  statute  of 
Gloucester,  6  Edw.  L,  eh.  1,  §  2,  gave  the  plaintiff 
a  risrht  to  costs  in  all  cases  where  he  was  entitled 
to  damages.  Under  this  statute,  the  plaintiff  in 
replevin  is  entitled  to  costs.1 

The  defendant  or  avowant  in  replevin,  although 
he  was  in  fact  an  actor,  was  not  within  the  words 
of  the  statute  of  Gloucester,  and  was  not  entitled 
to  costs  until  the  statute  7  Henry  YIIL,  ch.  4,  which 
gives  damages  and  costs  to  every  avowant,  and  to 
every  person  making  cognizance,  or  justifying  as 
bailiff  in  replevin,  for  any  rent,  custom,  or  service, 
if  his  avowry,  cognizance,  or  justification  be  found 
for  him,  or  the  plaintiff  be  otherwise  barred.  The 
statute  21  Henry  VIII.,  ch.  19,  extends  the  same 
benefit  to  defendants  avowing,  making  cognizance, 
or  justifying,  for  damage  feasant.2     These  statutes 

1  Gilb.  Repl.  165.   Tidd  979.   Comyn's  Dig.  Tit.  Costs,  A.  1. 
8  See  Appendix. 


224:  OF   THE   COSTS   IN"   REPLEVIN. 

have  been  held  to  extend  to  the  case  of  an  estray,1 
and  to  an  avowry  by  an  executor  under  the  statute 
32  Hen.  VIII.,  ch.  37,  although  that  statute  is  silent 
as  to  costs.2 

The  case  of  a  defendant  claiming  property  is  said 
to  be  casus  omissus  under  the  statutes  Henry  Till., 
so  that  he  is  not  thereby  entitled  to  costs.3  But 
the  statute  4  James  I.,  ch.  3,  remedies  the  omission 
by  giving  costs  to  the  defendant  in  all  cases  where 
they  could  have  been  claimed  by  the  plaintiff,  had 
he  succeeded.4  "Where  the  suit  abates,  these 
statutes  do  not  give  costs  to  the  defendant.5 

The  statute  17  Car.  II.,  ch.  7,  gives  full  costs 
when  the  defendant  proceeds  on  that  statute.  The 
statute  11  Geo.  II.,  ch.  19,  which  gives  the  com- 
mon avowry,  enacts,  that,  "  If  the  plaintiff  should 
become  non-suit,  discontinue,  or  have  judgment 
against  him,  the  defendant  should  recover  double 
costs  of  suit."  The  same  phraseology  is  used  in 
the  Pennsylvania  Act,  21st  March,  1772,  sec.  10. 

1  Haselip  v.  Chaplen,  Cro.  Eliz.  257,  329. 

2  Gilb.  Repl.  166.    Farvell  v.  Keightly,  2  Roll.  Rep.  457. 

3  Turner  v.  Gallillee,  Hard.  153.  Gilb.    Repl.  166. 
*  Gilb.  Repl.  166. 

5  Comyn's  Dig.  Tit.  Costs,  A.  4.  Comyn's  Rep.  122.  2  Lord 
Raymond  788. 


OF    THE   COSTS    IN    REPLEVIN.  225 

The  defendant  in  replevin  who  avows  generally 
under  11  Geo.  II.,  is  entitled  to  double  costs  in  his 
judgment,  notwithstanding  he  may  have  pleaded 
many  other  avowries,  with  a  view  merely  to  try  a 
title.1 

The  statute  is  confined  to  three  specific  cases, 
non-suit,  discontinuance,  and  judgment ;  and, 
therefore,  where,  in  replevin,  the  cause  not  being 
at  issue,  the  parties  agreed  by  bond  to  submit  the 
question  to  arbitration,  the  costs  to  abide  the 
event,  and  the  arbitrator  afterwards  awarded  in 
favor  of  the  defendant,  it  was  held  by  the  court  of 
king's  bench,  that  he  was  not  entitled  to  double 
costs.2  It  has  been  held  by  the  district  court  for 
the  city  and  county  of  Philadelphia,  that  the  judg- 
ment against  the  plaintiff  to  entitle  the  defendant 
to  double  costs  of  suit,  must  be  a  final  judgment.3 
An  award  of  arbitrators,  therefore,  in  favor  of 
an  avowant,  does  not  require  payment  of  double 
costs  by  the  plaintiff  on  appeal  from  the  award.3 
In  taxing  the  costs  under  this  act,  it  should  be 
remembered  that  costs  and  fees  are  altogether  dif- 
ferent :  costs  being  an  allowance  to  the  party  for 

1  Johnson  v.  Lawson,  2  Bing.  341.  Leominster  Canal  Com- 
pany v.  Cowel,  1  B.  &  P.  213.  Staniland  v.  Ludlam,  4  Barn. 
&  Cress.  889. 

2  Gurney  v.  Buller,  1  Barn.  &  Aid.  670. 

3  Hartley  v.  Bean,  1  Miles  168. 


226  OF    THE   COSTS   IN   REPLEVIN. 

expenses  actually  paid,  or  for  which  he  is  respon- 
sible to  the  officers  of  the  court,  and  fees  being  a 
compensation  to  the  officers  for  services  due  by 
the  party  to  whom  they  were  so  rendered.  The 
question  whether  the  plaintiff  in  replevin  is  bound 
to  pay  double  fees  to  the  officer  employed  by  him- 
self, is  entirely  different  from  the  question  whether 
he  is  bound  to  pay  his  successful  antagonist  double 
the  amount  of  his  costs  and  charges  laid  out  and 
expended  about  the  suit.  The  rule  is,  that  as 
between  a  party  and  the  officer,  charges  for 
services  rendered  to  him  are  fees ;  as  between  the 
parties  to  the  cause,  charges  actually  paid  by  the 
successful  party,  or  for  which  he  is  responsible  to 
the  officer,  are  costs.  The  latter  only  being  con- 
sidered costs,  of  course  those  only  are  to  be 
doubled.1  The  costs  are  recoverable  from  the  sure- 
ties in  the  replevin  bond.2  If  the  plaintiff  be  non- 
prossed, the  defendant  shall  have  his  costs  as  in 
other  cases.3 

Under  the  statute  4  Anne,  ch.  16,  sect.  4,  5, 
which  allows  several  pleas,  and  which  has  been 
construed  to  extend  to  avowants  in  replevin,4  the 

1  Musser  v.  Good,  11  S.  &  R.  248;  but  see  Staniland  v. 
Ludlam,  4  Barn.  &  Cress.  889. 

2  Tibbal  v.  Cahonn,  10  Watts.  232. 

3  Davies  v.  James,  1  T.  R.  372. 

*  Stone  v.  Forsyth,  Dougl.  708,  9,  note  2. 


OF   THE   COSTS   IN   REPLEVIN.  227 

costs  of  double  pleadings  are  left  in  the  discretion 
of  the  court.     The  form  for  entering  judgment  for      y 
costs  states  it  to  be  by  discretion  of  the  court.1 

"Where  some  issues  in  replevin  are  found  for  the 
plaintiff,  which  entitle  him  to  judgment,  and  some 
for  the  defendant,  the  defendant  must  be  allowed 
the  costs  of  the  issues  found  for  him  out  of  the 
general  costs  of  the  verdict,  unless  the  judge 
certify  that  the  plaintiff  had  probable  cause  for 
pleading  the  matter  on  which  these  issues  are 
joined;  and  in  such  case  it  is  the  practice  in 
England  not  only  to  allow  the  costs  of  the  plead- 
ings, but  also  the  costs  of  the  trial  of  the  issue.2 
And  the  costs  of  such  parts  of  the  pleadings  and 
briefs,  and  of  such  witnesses  as  are  not  applicable 
to  the  points  on  which  the  verdict  for  the  success- 
ful party  proceeds,  must  be  deducted  from  the 
general  costs.3 

In  replevin  for  several  articles,  if  the  jury  find 
for  the  plaintiff  as  to  part  of  them,  and  for  the 
defendant  as  to  part,  assessing  to  each  the  proper 

1  Wilk.  Repl.  106. 

2  Brooke  v.  Willet,  2  H.  Black.  435.  Podd  u.  Joddrell,  2  T. 
R.  235. 

s  Penson  v.  Lee,  2  Bos.  &  Pul.  335.  2  Fox  &  Smith's  Irish 
Rep.  47.  Cook  v.  Green,  1  Marsh.  234.  Cook  v.  Green,  5 
Taunt.  594. 


228  OF   THE   COSTS   IN"   KEPLEVIN. 

damages,  separate  judgments  will  be  entered  in 
favor  of  each  with  full  costs.1  The  act  of  3d 
April,  1799,  declaring  illegal  a  replevin  for  goods 
and  chattels,  levied,  seized,  or  taken  in  execution, 
or  by  distress,  or  otherwise,  by  any  sheriff,  &c,  in 
case  of  its  violation  gives  treble  costs  to  the  de- 
fendant.2 The  avowant  in  replevin,  residing  out 
of  the  jurisdiction  of  the  court,  may  be  compelled 
to  give  security  for  costs.* 

1  Winnard  v.  Foster,  Lutw.  U90.  Clark  v.  Keith,  9  Ohio 
R.  72.  Powell  v.  Hinsdale,  5  Mass.  343.  Poor  v.  Woodburn, 
25  Vt.  234. 

2  1  Sin.  Laws  470. 

3  Selby  v.  Crutchley,  4  Moore  280.     s.  c.  1  Bro.  &  Bing.  505. 


CHAPTER   XIII. 


OF  THE  EXECUTION". 


The  plaintiff  in  replevin  is  entitled  to  execution 
by  fieri  facias,  and  capias  ad  satisfaciendum,  and 
in  England  by  elegit. 

There  are  several  executions  for  the  defendant. 
First,  on  the  judgment  of  retorno  habendo,  at 
common  law,  he  is  entitled  to  his  writ  of  retorno 
habendo,1  by  which  the  sheriff  is  commanded  to 
cause  the  goods  and  chattels  to  be  returned  to  him. 
This  it  is  seldom  possible  for  the  sheriff  to  do. 
The  distress  creates  no  lien  upon  the  goods,  and 
they  remain  in  the  hands  of  the  plaintiff  in  replevin, 
liable  to  any  subsequent  distress,  or  to  any  dispo- 
sition which  he  may  choose  to  make   of  them.2 

1  A  doubt  is  expressed  by  the  supreme  court,  in  Gibbs  v. 
Bartlett,  2  W.  &  S.  34,  as  to  whether  this  writ  was  ever  issued 
in  Pennsylvania :  there  are  numerous  instances  of  it  on  the 
records  of  the  courts  of  the  city  and  county  of  Philadelphia. 

1  Woglan  v.  Cowperthwaite,  2  Dall.  68.  Bradyll  v.  Ball,  1 
Brown's  Ch.  Rep.  427.  Frey  v.  Leeper,  2  Dall.  131.  See  Ap- 
pendix, Stat.  West.  II.,  13th  Ed.  I.,  ch.  2,  §  2  at  close.  Ex  parte 
Devine,  1  Cook's  Bank.  Law  176,  &c. 


230  OF   THE   EXECUTION. 

The  writ  of  retorno  habendo  will  not  justify  the 
sheriff  in  taking  them  from  the  possession  of  any 
third  person,  who  has  acquired  a  right  to  their 
possession  since  the  replevin.  In  this  case,  the 
proper  return  for  the  sheriff  to  make  is  that  the 
goods  have  been  eloigned. 

In  Maryland,  when  the  property  replevied  was 
either  a  mulatto  negro  or  a  negro  slave,  it  was  by 
statute  declared  unlawful  for  either  plaintiff  or  de- 
fendant, or  any  other  person,  in  whose  possession 
the  said  property  might  be,  to  sell  such  property 
until  the  action  was  determined :  the  sale  was  de- 
clared void,  unless  ordered  by  the  court,  and  it  was 
declared  felony  to  sell  or  transport  such  property 
out  of  the  state,  pending  the  suit.1 

Upon  the  return  of  "  eloigned,"  the  practice  in 
England  was,  formerly,  to  issue  what  was  called  a 
capias  in  withernam  to  the  sheriff,  by  which  he  was 
commanded  to  take  other  goods  of  the  plaintiff  of 
equal  value  with  those  eloigned,  and  deliver  them 
to  the  defendant,  to  be  by  him  detained  irreplevis- 
able, until  the  goods  first  taken  should  be  forth- 
coming. If  the  plaintiff  had  no  cattle  or  goods 
which  could  be  so  taken,  the  sheriff  returned  nihil 

1  Act  April,  1833,  ch.  274.     2  Dorsey's  Laws  1129. 


OF    THE   EXECUTION.  231 

to  that  writ :  and  the  defendant,  thereupon,  sued 
out  a  scire  facias  against  the  pledges,  who  had  un- 
dertaken to  the  sheriff,  in  pursuance  of  the  statute 
of  Westminster  II.,  that  the  cattle,  &c,  should 
be  returned  to  the  defendant,  to  show  cause  why 
their  cattle,  &c,  to  the  value  of  the  cattle,  &c, 
eloigned,  should  not  be  delivered  to  the  defendant ;' 
and  if  no  cause  were  shown,  a  writ  issued  to  take 
their  cattle,  &c. ;  but  if  they  had  none,  the  sheriff 
returned  nihil  also  to  that  writ,  and  then  a  scire 
facias  was  awarded  against  the  sheriff  himself,  that 
he  render  to  the  defendant  so  many  cattle,  &C1 

It  is  no  longer  necessary  to  sue  out  a  capias  in 
withernam  against  the  plaintiff,  or  a  scire  iacias 
against  the  pledges  or  sheriff;  but  the  defendant 
may  proceed  on  the  replevin  bond,  or  bring  an 
action  on  the  case  against  the  sheriff,  on  the  con- 
struction of  the  statute  of  "Westminster  II.,  if, 
contrary  to  that  act,  the  sheriff  have  taken  no 
pledges  at  all,  or  if  the  pledges  be  insufficient.2 

Second,  under  the  statutes  of  Henry  VIII. ,  if 
the  cause  comes  to  trial,  the  jury  assess  the  dam- 

1  1  Wms.  Saund.  195,  a.  N.  3. 

2  1  Wms.  Saund.  195,  a.  Note  3.  Rous  o.  Patterson,  16  Yiner 
Abr.  399,  400.  Mayser  v.  Gray,  Cro.  Car.  446.  Sir  W.  Jones 
378.  Bradyll  v.  Ball,  1  Bro.  Ch.  Rep.  427.  Wilk.  Repl.  121. 
See  Post,  ch.  xvi. 


232  OF   THE   EXECUTION. 

ages,  and  then  the  retorno  habendo  is  accompanied 
by  the  fieri  facias  and  capias  ad  satisfaciendum, 
for  the  damages  and  costs.  If,  however,  the  judg- 
ment against  the  plaintiff  is  by  default,  a  writ  of 
inquiry  must  be  issued  to  ascertain  the  damages 
and  costs,  either  in  the  same  or  by  a  separate  writ.1 
Upon  the  return  thereof  by  the  sheriff,  final  judg- 
ment is  entered  up  for  the  defendant  to  recover  as 
well  the  damages  and  costs  assessed  by  the  jury, 
as  the  costs  adjudged  by  the  court,  and  for  these 
a  capias  or  fieri  facias  may  issue.2  It  is  said,  that 
after  a  judgment  for  a  return,  there  is  no  necessity 
for  damages  under  the  statutes  of  Henry  VIII. , 
except  to  entitle  the  defendant  to  costs,  and,  there- 
fore a  remittitur  may  be  entered  for  the  damages 
under  those  statutes,  and  the  defendant  may  have 
judgment  for  the  costs.* 

"Where  the  defendant  proceeds  under  the  statute 
17  Chas.  II.,  ch.  7,  he  shall  have  execution  on  his 
judgment  for  damages  and  costs  by  fieri  facias. 
The  terms  of  the  act  must  be  strictly  pursued,  to 
entitle  him  to  judgment  under  it.  Thus,  if  the 
jury  inquire  of  the  rent  in  arrear,  but  omit  to  find 
the  value  of  the  goods,  or  vice  versa,  the  omission 

1  1  Wms.  Saund.  195,  note  3. 

2  Tkes.  Brev.  56,  221.     1  Wms.  Saund.  195,  N.  3. 

3  Wilk.  Repl.  71. 


OF   THE   EXECUTION.  \L'\?t 

cannot  be  supplied  by  a  writ  of  inquiry.  The  de- 
fendant may,  nevertheless,  have  his  common  law 
judgment  of  retorno  habendo,  and  the  correspond- 
ing execution.  If  the  statute  is  strictly  pursued, 
he  will  be  entitled  to  his  fieri  facias  for  the  amount 
of  the  arrears,  or  for  so  much  thereof  as  the  value 
of  the  goods  and  chattels  distrained  shall  amount 
unto.  It  is  said  to  be  unsettled  whether  he  is 
entitled  to  a  capias.1  In  the  case  of  Weidel  v. 
Roseberry  and  Miller,2  which  was  replevin  for 
goods  taken  on  a  distress  for  rent ;  the  defendant, 
Roseberry,  made  conusance  under  Miller,  who 
avowed  for  rent  arrear,  replication,  no  rent  arrear, 
and  issue.  The  jury  found  for  the  defendant  one 
hundred  and  twelve  dollars  and  ninety-five  cents, 
on  which  judgment  was  entered  in  short,  and  it 
was  supported  as  a  judgment  of  retorno  habendo. 
The  goods  levied  upon  were  the  goods  of  a  third 
person  on  the  premises.  In  delivering  the  opinion 
of  the  court,  Judge  Duncan  uses  the  following 
language :  "  If  this  was  a  judgment  on  which  the 
defendant  might  take  out  execution  against  the 
plaintiff  for  the  rent  found  to  be  in  arrear  by 
Crouse,  as  the  plaintiff  was  not  the  tenant,  it  would 
be  erroneous  ;  and  even  against  the  tenant,  where 
the  jury  had  only  found  the  rent  in  arrear,  without 

1  Wilk.  Repl.  111.  2  13  S.  &  R.  178. 


234  OF   THE   EXECUTION. 

finding  the  value  of  the  goods  distrained,  snch 
judgment  could  not  be  enforced  by  execution." 
If  the  judge  meant,  what  the  language  would  seem 
to  imply,  that  if  the  statute  17  Chas.  II.,  ch.  7,  was 
strictly  pursued,  and  the  value  of  the  goods,  and 
the  amount  of  rent  arrear,  respectively  found,  that 
it  would  make  any  difference,  in  issuing  the  fieri 
facias  for  the  rent,  if  the  goods  were  of  that  value, 
whether  the  plaintiff  was  a  tenant  or  a  stranger,  it 
would  seem  that  he  was  mistaken.  The  goods  of 
a  stranger,  upon  the  premises,  are,  with  some  ex- 
ceptions, liable  to  a  distress  for  rent.  If,  on  his 
replevin,  he  cannot  bring  them  within  one  of  the 
exceptions,  and  so  judgment  is  given  against  him, 
there  can  be  no  injustice  in  compelling  him  to  a 
restitution  of  the  goods,  or  their  value,  by  the  same 
means  which  would  be  used  against  the  tenant. 
The  law  restricts  the  fieri  facias  to  the  value  of  the 
goods  taken,  to  which  amount  he  is  clearly  liable 
ultimately  through  his  bond  to  the  sheriff,  unless 
he  defeats  the  defendant  in  replevin.  The  only 
effect  of  giving  the  fieri  facias  is  to  shorten  the 
time  during  which  the  landlord  may  be  deprived 
of  his  rent.  But  as  failure  to  pay  rent  is  a  pretty 
sure  indication  of  want  of  property,  the  fieri  facias 
is  but  little,  if  ever,  resorted  to.  It  being  con- 
sidered the   safest  and  most  expeditious   course 


OF   THE    EXECUTION".  235 

to  proceed  against  the   sureties  in  the   replevin 
bond.1 

In  Massachusetts  a  writ  of  reprisal  similar  to  the 
capias  in  withernam,  is  given  by  statute.  In  New 
York,  New  Hampshire,  Pennsylvania,  Delaware, 
Wisconsin,  it  is  not  known  in  practice.  If  judg- 
ment is  given  against  the  plaintiff  for  a  sum  of 
money,  he  is  entitled  to  stay  of  execution,  as  in 
other  cases.2 

1  See  Post,  eh.  xv. 

2  Roe  v.  McCrea,  1  Ash.  16. 


CHAPTER  XIY. 

OP    THE   WRIT   DE   HOMINE   REPLEGIANDO. 

Before  the  habeas  corpus  act,  replevin  was  the 
principal  remedy  for  an  illegal  imprisonment  It 
is  now  very  rarely  used  in  England;  but  in  several 
of  the  United  States  it  is  the  remedy  pointed  out 
by  statute  for  an  illegal  attempt  to  hold  a  slave. 

In  Pennsylvania,  the  supreme  court  at  an  early 
day  recognized  the  common  law  writ  as  an  exist- 
ing remedy,  and  quite  recently  it  has  been  re- 
sorted to  successfully  as  an  expedient  for  freeing 
a  fugitive  from  justice.  Under  these  circum- 
stances, it  seemed  that  a  brief  outline  of  the  pro- 
ceedings on  this  writ  would  not  find  an  inappro- 
priate place  in  the  present  volume. 

Reeve,  in  his  History  of  the  Common  Law,  says 
that,  "  The  writ  de  homine  replegiando  lay  where 
a  man  was  imprisoned,  but  was  by  law  replevisable; 
a  writ  therefore  for  his  being  replevied  issued  to 
the  sheriff  to  the  following  effect :  '  We  command 
you  that  justly  and  without  delay  you  cause  A.  to 


OF    THE    WRIT    DE    IIOMINE    REPLEGIANDO.      237 

be  replevied,  whom  B.  took,  and  taken  doth  hold, 
(or  whom  B.  took  and  you  hold  captive),  unless 
he  was  taken  by  our  special  precept,  or  that  of  our 
chief  justice,  or  for  the  death  of  a  man,  or  for  some 
other  act  for  which,  according  to  the  laws  of  our 
realm  of  England,  he  is  not  replevisable,  &c. ;'  this 
,  was  a  justicies,  and  not  returnable. 

"If  the  sheriff  did  not  obey  this  writ,  there  issued 
a  sicut  alias,  or  causam  nobis  significes,  and  then 
a  pluries ;  and  if  the  sheriff  still  disobeyed,  then  an 
attachment  followed  agaiost  the  sheriff,  directed 
to  the  coroner,  who  was  also  to  see  the  first  writ 
executed."1  Security  was  given  to  the  sheriff  that 
the  man  should  be  forthcoming  to  answer  any 
charge  against  him.2  In  fact,  the  proceedings 
upon  the  homine  replegiando  were  very  much  the 
same  as  in  the  common  cases  of  replevin  for  goods. 
If  the  sheriff  returned  elongatus  which  he  might 
do,  a  capias  in  withernam  issued  to  detain  the  de- 
fendant without  bail  or  main  prize  until  he  pro- 
duced the  party. 

If  the  defendant  came  in  and  pleaded  non  cepit, 
before  the  issuing  of  the  capias  in  withernam,  he 
was  entitled  to  be  discharged  without  putting  in 

1  3  Reeve's  Ilist.  83.  '  3  Black.  Com.  129. 

16 


238      OF   THE   WRIT   DE   HOMINE   REPLEGIANDO. 

bail.  If  he  had  been  taken  oix  the  withernam,  he 
was  entitled  to  be  bailed,  notwithstanding  the  re- 
turn of  elongatus,  or  the  surmise  in  the  writ,  for 
his  plea  was  said  to  be  better  than  the  surmise  in 
the  writ,  because  the  proof  was  incumbent  on  the 
plaintiff ;  and  the  sheriff's  return  was  not  conclu- 
sive, because  it  was  the  only  return  which  he  could 
make,  as  he  was  not  allowed  to  contradict  the  writ 
by  returning  non  cepit. 

It  was  a  good  return  to  a  homine  replegiando  to 
say  that  the  defendant  claimed  the  man  as  villein, 
but  upon  the  return  of  the  writ  to  the  court,  if  any 
persons  came  into  the  court  and  gave  security  to 
have  the  plaintiff  in  court  at  a  day  certain,  a  writ 
issued  to  the  sheriff  to  deliver  the  plaintiff;  and 
upon  the  coining  of  the  plaintiff  into  court  at  the 
day,  he  was  required  to  give  new  security  to  ap- 
pear in  court  de  die  in  diem,  until  the  plea  was  de- 
termined, and  if  judgment  should  be  given  against 
him,  then  his  bail  was  to  bring  him  in  and  deliver 
him  to  the  defendant,  and  if  he  could  not  find  such 
bail,  then  he  was  committed  to  the  custody  of  the 
marshal,  and  at  the  end  of  the  suit  was  brought  by 
him  into  court  and  delivered  to  the  defendant,  if 
such  was  the  judgment.1 

In  one  case  where  a  wife  had  left  her  husband, 

1  Moor  v.  Watts,  1  Lord  Raym.  615. 


OF   THE   WRIT   DE    BOMINE    REPLEGIAKDO.      239 

he  issued  a  homine  replegiando,  and  after  an  a 
and  a  pluries,  the  sheriff  returned  that  the  defend- 
ants (her  father  and  mother)  had  eloigned  her  to 
places  unknown;  and  upon  the  day  of  the  return 
of  the  pluries,  the  defendants  entered  their  appear- 
ance, but  notwithstanding  this  appearance,  the 
plaintiff  sued  out  a  capias  in  withernam  against 
the  defendants.  C.  J.  Holt  stayed  the  withernam, 
whereupon  they  moved  for  a  supersedeas  of  it, 
because  they  had  entered  their  appearance,  and 
offered  to  plead  non  ceperunt,  which  they  were 
allowed  to  do.1 

In  New  York,  before  the  revised  statutes  (which 
especially  provide  for  the  writ  de  homine  replegi- 
ando, in  case  of  negroes  detained  as  slaves),  in 
the  case  of  Skinner  v.  Fleet,2  which  was  an  action 
of  trespass  on  the  case  against  a  sheriff  for  suffer- 
ing a  slave,  taken  on  homine  replegiando,  to  go  at 

1  Delabastide  v.  Reynell,  Carth.  287.  In  this  case  the 
plaintiff  was  said  to  be  a  Switzer.  It  presents  rather  an  odd 
instance  of  the  retaliation  supposed  to  be  the  consequence  of 
a  capias  in  withernam,  as  the  abduction  of  the  wife  would 
hardly  be  recompensed  by  the  capture  of  the  mother-in-law. 
There  is  one  case,  3  Mod.  120,  in  which  the  party,  an  Indian, 
is  said  to  have  turned  Christian  and  been  baptized;  whether 
the  decision  was  influenced  thereby  is  not  expressly  stated. 

■  14  Johns.  203. 


240      OF    THE    WRIT    DE    HOMINE    REPLEGIAXDO. 

large  without  sureties,  whereby  he  was  lost  to  his 
master.  The  court  state  the  proper  course  of 
practice  in  such  cases.  They  say,  "We  consider 
the  case  of  Covenhoven  v.  Seaman,  1  Johns.  Cases 
23,  as  having  established  the  practice  and  proceed- 
ings of  this  court  upon  this  writ,  in  conformity 
with  the  course  of  proceedings  in  England,  as 
laid  down  in  Fitz.  Nat.  Bre.  68  and  155.  The 
party  suing  out  the  writ,  and  claiming  to  be  free, 
should  enter  into  a  recognizance  in  court,  with 
sufficient  sureties  to  the  party  claiming  him  to  be 
a  slave,  to  prove  his  liberty,  personally  to  appear 
in  court,  and  to  prosecute  his  suit  with  effect.  In 
the  case  of  Covenhoven  v.  Seaman,  the  suit  was 
on  such  a  recognizance,  and  the  person  alleged  to 
be  a  slave  had  not  proved  his  liberty,  or  prosecuted 
his  suit  with  effect,  but  had  been  non-suited,  and 
the  court  held  that  the  suit  was  maintainable.  In 
Moor  v.  Watts  (12  Mod.  428),  Lord  Holt  said,  'If 
a  homine  replegiando  be  brought,  and  the  defend- 
ant claims  the  party  to  be  his  villein,  that  will  be 
a  good  return  for  the  sheriff  to  make,  and  there 
shall  be  no  replevin  until  the  plaintiff  give 
security,  and  that  in  court,  and  then  there  shall 
go  a  writ,  reciting  the  security  entered  into  in 
court,  to  the  sheriff  to  deliver  the  plaintiff;  and 
when  the  plaintiff  comes  in  upon  that  security  so 
entered  into  in  court,  he  is  not  at  large,  but  to  find 


OF    THE   WRIT    DE    HOMINE    REPLEGIANDO.      241 

new  security  that  he  shall  appear  from  day  to  day, 
pending  the  cause;  and  if  judgment  go  againsl 
him,  he  shall  render  himself  to  the  defendant,  and 
he  takes  him  out  of  court.'  The  judge,-  at  the 
trial,  ruled  correctly  that  the  sheriff  ought  to  have 
brought  Primus  (the  slave  and  plaintiff)  into 
court,  on  the  homine  replegiando,  and  returned 
that  he  was  claimed  as  slave.  Instead  of  doing 
so,  it  was  admitted  that  he  replevied  him,  and  set 
him  at  liberty,  as  mentioned  in  the  declaration  of 
the  plaintiff;  and  the  declaration  charges  that  the 
defendant,  as  sheriff  of  the  city  and  county  of  New 
York,  under  the  writ  of  pluries  homine  replegi- 
ando, voluntarily  permitted  Primus,  being  in  his 
custody  upon  the  said  writ,  and  claimed  by  the 
plaintiff  as  his  slave,  and  taken  from  his  posses- 
sion, to  escape  from  his  custody,  and  go  at  large 
without  sureties,  <fcc.  It  appeared,  however,  that 
the  sheriff  took  a  bond  to  himself  with  sureties 
for  the  prosecution  of  the  writ  with  effect,  and 
that  Primus  should  prove  his  liberty,  and  for  the 
return  of  Primus,  if  return  should  be  adjudged. 
This  bond  we  consider  of  no  avail,  as  the  sheriff 
has  no  power  or  right  to  take  it;  and,  consequently, 
it  affords  no  proof  that  an  escape  of  Primus  did 
not  take  place ;  nor  is  it  any  answer  to  the  allega- 
tion, that  the  sheriff  suffered  Primus  to  escape 
and  go  at  large  without  sureties;  for  this  means 


242      OF    THE   WHIT    DE    HOMINE    REPLEGIANDO. 

sureties  in  the  mode  prescribed  bylaw;  and  we 
have  already  seen  that  this  must  be  by  a  recogni- 
zance in  court.  It  appears  that  the  defendant 
assigned  this  bond  to  the  plaintiff,  with  the  assent 
of  his  attorney.  But  it  is  not  stated  or  proved 
that  it  was  accepted  in  discharge  of  this  suit ;  and 
in  no  other  way  can  the  assignment  bar  the  plain- 
tiff's recovery.  The  bond  is  not  so  assignable  as 
to  enable  the  assignee  to  sue  in  his  name,  and  the 
assignment  and  acceptance  of  the  bond  are  not 
pretended  to  have  been  by  way  of  accord  and  satis- 
faction." 

In  Pennsylvania  the  practice  does  not  seem  to 
be  settled  by  any  decision.  In  ex  parte  Lawrence,1 
in  1812,  the  court  say  that  the  writ  de  homine  re- 
plegiando  may  be  resorted  to.  In  1819,  the  writ 
was  resorted  to  in  the  case  of  Wright  v.  Deacon,2 
but  was  quashed  under  the  following  circumstances. 
The  writ  was  sued  out  by  the  plaintiff,  a  colored 
man,  against  the  defendant,  who  was  the  keeper  of 
the  county  prison;  and  the  defendant's  counsel 
moved  to  quash  it,  on  the  ground  of  its  having 
issued  contrary  to  the  constitution  and  laws  of 
the  United  States.  The  facts  were  submitted  to 
the  court,  in  a  case  stated,  by  which  it  appeared, 

1  5  Binn.  304.  2  5  S.  &  R.  62. 


OF    THE    WEIT    DE    IIOMIXE    REPLEGIAXDO.      243 

that  the  plaintiff  having  been  claimed  by  Raisin 
Gale,  of  Kent  county,  in  the  state  of  Maryland,  as 
a  fugitive  from  his  service,  was  arrested  by  him  in 
the  county  of  Philadelphia,  and  carried  before 
Richard  Kenshaw,  Esq.,  justice  of  the  peace,  who 
committed  the  plaintiff  to  prison,  in  order  that  in- 
quiry might  be  made  into  the  claim  of  the  said 
Gale.  The  plaintiff  then  sued  out  a  habeas  corpus, 
returnable  before  Thomas  Armstrong,  Esq.,  an 
associate  judge  of  the  court  of  common  pleas. 
Judge  Armstrong,  having  heard  the  parties,  gave 
a  certificate,  that  it  appeared  to  him,  by  sufficient 
testimony,  that  the  plaintiff  owed  labor  or  service 
to  the  said  Gale,  from  whose  service,  in  the  state 
of  Maryland,  he  had  absconded,  and  the  said  judge, 
therefore,  in  pursuance  of  the  act  of  the  congress 
of  the  United  States,  in  such  case  made  and  pro- 
vided, delivered  the  said  certificate  to  the  said 
Gale,  in  order  that  the  plaintiff  might  be  removed 
to  the  state  of  Maryland.  C.  J.  Tilghman,  in  de- 
livering the  opinion  of  the  court,  says :  "The  cer- 
tificate was  a  legal  warrant  to  remove  the  plaintiff 
to  the  state  of  Maryland.  But  if  this  writ  of 
homine  replegiando  is  to  issue  from  a  state  court, 
what  is  its  effect,  but  to  arrest  the  warrant  of  Judjre 
Armstrong,  and  thus  defeat  the  constitution  and 
law  of  the  United  States?  The  constitution  and 
the  law  say,  that  the  master  may  remove  his  slave 


244      OF    THE   WRIT    DE    HOMINE    REPLEGIAXDO. 

by  virtue  of  the  judge's  certificate:  but  the  state 
court  says,  that  he  shall  not  remove  him.  It  ap- 
pears to  us  that  this  is  the  plain  state  of  the 
matter,  and  that  the  writ  has  been  issued  in  viola- 
tion of  the  constitution  of  the  United  States. 
We  are,  therefore,  of  opinion,  that  it  should  be 
quashed." 

A  copy  of  the  writ  issued  will  be  found  in  the 
appendix.  The  docket  entries,  in  that  case,  have 
been  examined,  but  they  present  no  evidence  of 
bail  having  been  given,  or  a  recognizance  entered 
into  by  the  plaintiff,  or  any  one  on  his  behalf. 
The  return  to  the  writ  is  summoned  and  replevied, 
the  inference  from  which  would  be,  that  the  party 
was  set  at  liberty  by  the  sheriff.  But  the  subse- 
quent proceedings,  on  the  motion  by  defendant  to 
quash  the  writ,  and  on  the  case  stated,  would 
rather  imply  that  the  plaintiff  remained  in  custody, 
or,  at  all  events,  under  the  control  of  the  defend- 
ant and  the  sheriff,  otherwise  there  would  seem  to 
be  no  reason  for  the  defendant's  effort  (which 
proved  successful)  to  quash  the  writ.  By  inquiry 
from  the  counsel  engaged  in  the  case,  it  has,  how- 
ever, been  ascertained,  that  an  ordinary  replevin 
bond  was  given  to  the  sheriff,  and  that  the  plain- 
tiff was  by  him  immediately  set  at  large. 


OF   THE   WRIT   DE   HOMINE   REPLEGHA29DO.      245 

In  the  case  of  Brown  v.  Freed,  in  the  supreme 
court  of  Pennsylvania  for  the  eastern  district, 
of  July  term,  1857,  the  writ  was  issued  to  take 
the  prisoner  out  of  the  custody  of  the  keeper  of 
the  county  prison.  He  had  been  committed  as  a 
fugitive  from  justice,  to  await  the  requisition  of 
the  governor  of  Maryland.  On  the  arrival  of  the 
warrant  of  the  governor  of  Pennsylvania,  Brown 
was  brought  into  court  on  a  habeas  corpus,  and 
after  full  discussion,  the  governor's  warrant  was 
declared  informal  and  insufficient  for  its  purpose. 
But,  instead  of  discharging  the  prisoner,  the  court 
remanded  him  to  the  custody  of  Freed,  the  keeper 
of  the  county  prison,  to  await  the  arrival  of  a  more 
formal  warrant.  In  the  interval,  the  writ  de 
homine  replegiando  was  sued  out  in  the  name  of 
the  prisoner,  against  the  keeper  of  the  prison;  an 
ordinary  replevin  bond  was  given  to  the  sheriff, 
and  the  party  was  set  at  liberty.  The  writ  has 
not  been  returned,  and  no  further  proceedings  have 
been  had  in  the  case.  Under  the  act  of  assembly 
of  the  state  of  Pennsylvania,  of  March  3d,  1847,1 
neither  the  keeper  of  the  county  prison,  nor  any 
other  state  officer,  is  allowed  to  hold  in  custody  a 
fugitive  from  labor;  he  would,  therefore,  in  such 
a  case,  have  nothing  to  interpose  to  the  writ  of 

1  Pampb.  Laws  1847,  206. 


246      OF    THE    WRIT    DE    HOMIXE    REPLEGIANDO. 

homine  replegiando.  But  where  the  fugitive  from 
labor  is  in  custody  of  a  United  States  officer,  or 
of  the  party  claiming  him,  or  where  the  prisoner  is  a 
fugitive  from  justice,  and  duly  committed  to  await 
a  requisition,  it  would  seem  to  be  a  dangerous 
course  for  the  sheriff  to  set  him  at  liberty  on  the 
homine  replegiando,  without  bringing  him  into 
court,  and  stating  the  claim  upon  which  he  is  de- 
tained; and  an  equally  dangerous  course  for  the 
custodian,  if  an  officer,  to  permit  him  to  be  re- 
moved without  asserting  the  cause  of  detention, 
and  claiming  to  retain  him. 


CHAPTER   XV. 


OF  THE  REPLEVIN  BOND. 


The  sheriff  never  executes  a  writ  of  replevin 
without  taking  a  bond  from  the  plaintiff,  usually 
with  two  sureties,  in  double  the  amount  of  the 
value  of  the  goods  taken,  conditioned  to  prosecute 
the  suit  with  effect,  and  without  delay,  and  to 
return  the  goods,  if  a  return  shall  be  awarded,  and 
to  indemnify  the  sheriff.  The  clause  for  the  in- 
demnification of  the  sheriff  is  not  required  by 
statute. 

The  statute,  Westminster  II.  (13  Ed.  I.),  c.  2,  s.  3, 
provides,  "  that  the  sheriff  or  bailiffs  from  thence- 
forth shall  not  only  receive  the  plaintiff's  pledges 
for  the  pursuing  of  the  suit,  before  they  make  de- 
liverance of  the  distress,  but  also  for  a  return  of  the 
beasts,  if  the  return  be  awarded/'  The  statute  11 
Geo.  II.,  c.  19,  sec.  23,  enacted,  "that  all  sheriffs, 
and  other  officers,  having  authority  to  grant  reple- 
vins, may  and  shall  in  every  replevin  of  a  distress 
for  rent,  take,  in  their  own  names,  from  the  plain- 
tiff, and  two  responsible  persons  as  sureties,  a  bond 


248  OF    THE    REPLEVIN    BOND. 

in  double  the  value  of  the  goods  distrained  (such 
value  to  be  ascertained  by  the  oath  of  one  or  more 
credible  witnesses),  and  conditioned  for  prosecut- 
ing the  suit  with  effect,  and  without  delay,  and  for 
duly  returning  the  goods  and  chattels  distrained, 
in  case  a  return  shall  be  awarded,  before  any  de- 
liverance be  made  of  the  distress  ;  and  that  such 
sheriff,  or  other  officer  as  aforesaid,  taking  any  such 
bond,  shall,  at  the  request  and  costs  of  the  avowant, 
or  person  making  cognizance,  assign  such  bond  to 
the  avowant  or  person  aforesaid,  by  endorsing  the 
same,  and  attesting  it  under  his  hand  and  seal  by 
two  or  more  credible  witnesses;  and  if  the  bond  so 
taken  and  assigned  be  forfeited,  the  avowant  or 
person  making  cognizance,  may  bring  an  action 
and  recover  thereupon  in  his  own  name,  and  the 
court,  where  such  action  shall  be  brought,  may,  by 
a  rule  of  the  same  court,  give  relief  to  the  parties 
upon  such  bond,  as  may  be  agreeable  to  justice 
and  reason,  and  such  rule  shall  have  the  nature  and 
effect  of  a  defeasance  to  such  bond." 

The  Pennsylvania  act  of  the  21st  March,  1772, 
sec.  11,  is  as  follows  :  "And  to  prevent  vexatious 
replevins  of  distresses  taken  for  rent,  Be  it  enacted, 
that  all  sheriffs  and  other  officers,  having  authority 
to  serve  replevins,  may  and  shall  in  every  replevin 
of  a  distress  for  rent,  take,  in  their  own  names, 
from  the  plaintiff,  and  one  responsible  person  as 


OF    THE    REPLEVIN    BOND.  2  1(.> 

surety,  a  bond  in  double  the  value  of  the  goods 
distrained  (such  value  to  be  ascertained  by  tin- 
oath  or  affirmation  of  one  or  more  credible  person 
or  persons,  not  interested  in  the  goods  or  distress ; 
which  oath  or  affirmation  the  person  serving  such 
replevin  is  hereby  authorized  and  required  to 
administer),  and  conditioned  for  prosecuting  the 
suit  with  effect  and  without  delay,  and  for  duly 
returning  the  goods  and  chattels  distrained,  in  case 
a  return  shall  be  awarded,  before  any  deliverance 
be  made  of  the  distress,  and  such  sheriff  or  other 
officer  as  aforesaid,  taking  any  such  bond,  shall,  at 
the  request  and  costs  of  the  avowant  or  person 
making  cognizance,  assign  such  bond  to  the 
avowant,  or  person  aforesaid,  by  endorsing  the 
same,  and  attesting  it  under  his  hand  and  seal,  in 
the  presence  of  two  credible  witnesses  ;  and  if  the 
bond  so  taken  and  assigned  be  forfeited,  the  avow- 
ant or  person  making  conusance  may  bring  an 
action,  and  recover  thereupon  in  his  own  name ; 
and  the  court  where  such  action  shall  be  brought 
may,  by  a  rule  of  the  same  court,  give  such  relief 
to  the  parties  upon  such  bond,  as  may  be  agreeable 
to  justice  and  reason  ;  and  such  rule  shall  have  the 
nature  and  effect  of  a  defeasance  to  such  bond." 

The  statute  Westminster  II.,  ch.  2,  is  not  re- 
ported by  the  judges  to  be  in  force  in  Pennsylva- 
nia;   and    the  act  of   March  21st,   1772,   applies 


250  OF    THE    REPLEVIN    BOND. 

exclusively  to  cases  of  replevin  of  a  distress  for 
rent.  It  has,  notwithstanding,  always  been  the 
practice,  in  that  state,  to  take  a  bond  from  the 
plaintiff  in  replevin,  in  every  case,  whether  on  a 
distress  for  rent  or  otherwise ;  a  course  which,  with 
the  condition  for  the  indemnification  of  the  sheriff, 
was  no  doubt  adopted  in  imitation  of  the  English 
practice  under  the  statute  of  Westminister,  and 
has  been  sanctioned  by  long  practice  and  many 
decisions,1  and  is  justified  by  the  words  of  the  writ, 
which  command  the  sheriff  to  deliver  the  goods  if 
the  plaintiff  makes  him  secure  of  prosecuting  his 
claim  with  effect. 

In  Massachusetts  and  Vermont,  the  statutes  for- 
bid the  service  of  the  writ,  unless  the  plaintiff,  or 
some  one  on  his  behalf,  shall  execute  and  deliver 
to  the  officer  a  bond  to  the  defendant,  with  suffi- 
cent  sureties,  to  be  approved  by  the  officer,  in  a 
penalty  double  the  value  of  the  property  to  be  re- 
plevied, with  condition  to  prosecute  the  replevin 
to  final  judgment,  and  to  pay  such  damages  and 
costs  as  the  defendant  shall  recover  against  him, 
and  also  to  return  the  said  property,  in  case  such 
shall   be   the  final  judgment.     A  sum   must  be 

1  Dunbar  v.  Dunn,  10  Price  61.  Whiteman  v.  Jones,  5  N. 
Hamp.  362.  Gibbs  v.  Bartlett,  2  W.  &  S.  29.  Neville  v.  Wil- 
liams, 7  Watts  421,  Short  v.  Hubbard,  2  Bing.  348.  Opinion 
Park,  J. 


OF   THE    REPLEVIN    BOND.  251 

seated,  it  is  not  enough  to  say  "double  the  value 
the  goods  to  be  replevied."1  In  Missouri  and  Ar- 
kansas, the  bond  is  given  to  the  sheriff.  In  Ken- 
tucky, it  is  taken  in  the  name  of  the  commonwealth. 
In  all  the  states,  indeed,  in  which  the  law  has  been 
codified,  a  bond  is  required  in  every  case  before 
the  execution  of  the  writ. 

It  has  been  held  that  the  sheriff  is  not  bound  to 
pursue  strictly,  the  terms  of  the  statute  11  Geo. 
II.  And  that  the  bond  will  be  good,  although  it 
do  not  require  that  the  suit  should  be  prosecuted 
without  delay,  and  although  it  contains  an  under- 
taking to  indemnify  the  sheriff,  and  although  it  be 
executed  by  one  surety  only.2  And  it  seems  a 
warrant  to  confess  judgment  would  be  binding,3 
though  the  sheriff  might  not  be  justified  in  insist- 
ing on  such  a  provision. 

1  Case  v.  Pettee,  5  Gray  27.     Clark  v.  Connecticut  R.  R.  Co., 
6  Gray  363.     Purple  v.  Purple,  5  Pick.  226. 

2  Dunbar  v.  Dunn,  10  Price  54.  Austen  v.  Howard,  7 
Taunt.  28.     2  Marsh.  352.    1  Moore  68.   De  Bow  v.  Applegate, 

3  M'Cord  44.  Rider  v.  Edwards,  3  Mann.  &  Grang.  202.  See 
Morris  v.  Matthews,  2  Adol.  &  Ellis,  N.  S.  293.  Lamden  v. 
Conoway,  5  Harring.  1.  Claggett  v.  Richards,  45  N.  Damp. 
360.  Cady  v.  Eggleston,  11  Mass.  282.  Korse  v.  Waterhouse, 
30  Conn.  129.     Shaw  v.  Tobias,  3  Comst.  188. 

8  Neville  v.  Williams,  7  Watts  421.  Shaw  v.  Tobias,  3  Comst. 
189.     Short  v.  Hubbard,  2  Bing.  348.     Frauciscus  v.  Reigart, 

4  Watts  98. 


252  OF    THE   REPLEVIN    BOND. 

The  Pennsylvania  statute  requires  but  one 
surety.  Two  may  be  taken;1  and,  indeed,  are 
always  required  by  the  sheriff.  Under  the  Maine 
statute,  which  requires  a  bond  with  sureties,  a 
bond  with  one  surety  is  void.2  But  a  mere  clerical 
error,  by  which  the  name  of  the  plaintiff  is  inserted 
in  a  recital  where  that  of  the  defendant  should  be, 
will  not  vitiate  the  bond.3 

If  the  plaintiff  make  default  in  any  of  the  pro- 
ceedings, or  do  not  prosecute  the  suit  with  effect, 
or  with  success,  which  is  the  same  thing,  the  de- 
fendant may  take  an  assignment  of  the  bond  ;4  for 
the  conditions  of  the  bond  are  distinct  and  inde- 
pendent of  each  other,  and  a  breach  of  any  one  of 
them  will  occasion  a  forfeiture.5  The  plaintiff 
cannot  pay  into  court  the  penalty  of  the  bond  in 
discharge  of  the  sureties,  and  so  make  them  wit- 
nesses.6 

1  Saeltzer  v.  Ginther,  2  Miles  87. 

2  Greely  v.  Currier,  39  Maine  516. 

3  Green  v.  Walter,  31  Maine  25. 

*  Tumor  v.  Turner,  2  Brod.  &  B.  107.  Ex  parte  Boyle,  2  D.  & 
R.  13.  Perreau  v.  Bevan,  5.  B.  &  C.  284.  Jackson  v.  Hanson, 
8  M.  &  W.  477. 

5  Perreau  v.  Bevan,  5  B.  &  C.  284.  8  D.  &  R.  88.  Gibbs  v. 
Bartlett,  2  W.  &  S.  33. 

6  Cummings  v.  Gann,  2  P.  F.  Smith  488. 


OF   THE   BEPLEvTN    BOND.  253 

Some  hesitation  seems  to  have  been  felt,  as  well  in 
England  as  in  America,  as  to  the  effect,  upon  the 
liability  of  the  sureties  in  the  bond,  of  an  election 
by  the  defendant  to  proceed  under  the  statute  17 
Car.  II.  It  seems  finally  settled  in  England,  thai 
the  sureties  are  not  discharged  by  such  an  elec- 
tion; and  the  same  conclusion,  it  is  presumed, 
must  follow  in  Pennsylvania  from  the  decision  in 
Gibbs  v.  Bartlett.  It  has  been  so  held  in  ^N"ew 
York.1 

It  was  held  by  Lord  Hardwicke,  that,  if  the  de- 
fendant proceeded  on  the  statute,  the  court  of  king's 
bench  would  not  compel  the  sheriff  to  deliver  up 
the  replevin  bond  to  enable  the  avowant  to  sue  the 
sureties,  and  he  said  he  did  not  remember  one  in- 
stance of  that  being  done.2  Wilkinson,  comment- 
ing on  this,  adds,  "  It  seems  since  to  have  been  a 
very  general  opinion,  that  if  the  defendant  in  re- 
plevin proceed  upon  the  statute,  for  the  arrearages 
of  rent  and  costs,  he  cannot  have  a  writ  of  retorno 
habendo,  nor  proceed  against  the  pledges  ;"  but  he 
cites  the  late  case  of  Tnrnor  v.  Turner,3  as  a  de- 
cision to  the  contrary. 

1  Gould  v.  Warner,  3  Wend.  54. 

2  Combes  t>.  Cole,  Rep.  Temp.  Hardwicke  352. 

3  2  Brod.  &  B.  107.     See  Dunbar  v.  Dunn,  10  Price  59. 

17 


254  OF    THE    REPLEVIN   BOND. 

The  whole  question  was  subsequently  reviewed 
by  the  court  of  king's  bench,  in  the  case  of  Perreau 
v.  Bevan,1  where  the  court,  by  very  satisfactory 
reasoning,  maintain  the  position  that  the  condi- 
tion of  the  bond  is  broken  and  the  bond  forfeited, 
as  well  by  not  prosecuting  the  suit  with  effect,  as 
by  a  default  of  making  a  return  of  the  distress  on 
such  return  being  adjudged,  each  part  of  the  con- 
dition being  independent  of  the  other,  and  the 
bond  forfeited  by  a  failure  in  either.  The  court 
go  on  to  say,  "  The  case  of  Tumor  v.  Turner,  we 
think,  has  rightly  established  that  the  avowant, 
by  having  elected  to  proceed  under  the  statute  17 
Ch.  II.,  c.  7,  is  not  confined  to  his  execution  under 
the  statute,  but  might  proceed  upon  the  replevin 
bond,  if  it  had  been  assigned,  and  may  proceed 
against  the  sheriff  for  his  negligence  in  the  loss 
of  it,  notwithstanding  what  is  stated  to  have  been 
said  by  Bathurst,  J.,  in  Cooper  v.  Sherbrooke,  2 
Wils.  116,  that  '  by  statute  17  Car.  II.,  the  legisla- 
ture intended  that  the  proceeding  upon  that  sta- 
tute by  writ  of  inquiry,  fieri  facias,  and  elegit, 
should  be  final  for  the  avowant  to  recover  his 
damages,  and  that  the  plaintiff  should  keep  his 
cattle,  notwithstanding  the  course  of  awarding  a 
writ  de  retorno  habendo,  which  is  a  right  jndg- 

1  5  Barn.  &  Cress.  284. 


OF    THE    REPLEVIN    BOND.  265 

merit,  for  the  statute  has  not  altered  the  judgment 
at  common  law,  but  only  gives  a  further  remedy 
to  the  avowant.'     The   court   of  common   pleas, 
however,  had  that  case  urged  to  them  as  in  point 
to  that  effect ;  hut  after  taking  time  to  consider, 
upon  deliberation  and  reasons  stated  at  length  in 
the  report,  decided  contrary  to  that  doctrine  of 
Bathurst,  J. ;  and   it   may  be  observed,  that  on 
adverting  to  the  preamble,  as  well  as  to  the  pro- 
visions of  that  statute,  the  legislature  meant  only 
to   facilitate   the    landlord's   remedy   against   his 
tenant,  and  give  him  additional  aid,  without  in 
any  respect  depriving  him  of  the  benefit  of  any 
remedy,  or  of  any  proceeding  he  was  entitled  to 
pursue  before ;  and  the  very  circumstance  of  the 
old  judgment  de  retorno  habendo  remaining  (which 
Bathurst,  J.,  allows,  and  which  is  allowed  on  all 
hands  to  be  the  right  judgment),  notwithstanding 
the  avowant  has  upon  the  verdict,  and  before  the 
giving  of  that  judgment,  elected  to  proceed,  and 
actually  proceeded   upon  that   statute,  seems   to 
show,  that  as  the  old  judgment  of  the  common 
law  was  not  gone  or  taken  away  by  that  election, 
so   the   consequences    resulting  from  it   still    re- 
mained, if  the  avowant  should  have  occasion,  or 
should  still  choose  to  crave  them  in  aid.     A  sub- 
sequent case  of  Dunn  v.  Dunbar,  in  this  court,  in 
Hilary  term,  1820,  was  cited.     That  was  stated  to 


256  OF    THE    REPLEVIN    BOND. 

be  an  action  against  the  surety  in  a  replevin  bond, 
after  judgment  in  the  replevin  suit  for  the  arrears 
of  rent  under  the  statute.  On  a  motion  by  Mr. 
Marryat,  to  set  aside  the  proceedings  on  the  bond, 
because  the.  surety  is  discharged  by  proceeding 
under  the  statute,  and  on  citing  Tidd's  Practice 
1078,  where  there  is  a  dictum  to  that  effect,  but 
no  reference  to  authority,  Abbott,  C.  J.,  is  stated, 
in  a  note  of  that  case,  to  have  said,  that  the  statu- 
table remedy  has  not  taken  away  the  sureties'  re- 
sponsibility, and  in  the  absence  of  authority  the 
rule  was  refused ;  but  if  authority  was  found,  it 
might  be  mentioned  again;  Holroyd  and  Best, 
justices,  were  present.  It  does  not  appear  to  have 
ever  been  mentioned  again.  Supposing  this  to  be 
a  correct  note  of  that  case,  and  that  it  did  not 
come  on  again,  it  is  in  support  of  our  present 
opinion.  The  case  indeed  of  Combes  v.  Cole, 
Rep.  Temp.  Hardw.  352,  was  cited,  but  that  case 
was  not  only  before  the  stat.  11  Geo.  II.,  where 
the  avowant  had  no  right  to  have  the  replevin 
bond  assigned  or  delivered  over  to  him,  as  he  has 
since  that  statute ;  and  that  case,  though  it  deter- 
mined that  the  only  mode  of  proceeding  against 
the  sheriff,  before  the  statute  11  Geo.  II.,  was  in 
the  mode  there  pointed  out,  does  not  establish  that 
the  proceeding  under  the  statute  17  Car.  II.,  with- 
out avail,  would  have  been  a  defence  to  an  action 


OF    THE    REPLEVIN    BOND.  2~u 

on  the  replevin  bond,  if  the  sheriff  had  permitted 
the  avowant  to  sue  on  it  in  his  own  name,  or  that, 
if  it  would,  it  would  be  so  now,  since  the  statute 
11  Geo.  II.,  eh.  19;  but  if  it  would  go  to  this 
extent,  it  has  in  effect  been  since  overruled."1 

The  supreme  court  of  Pennsylvania  at  one  time 
held,  that  it  was  a  discharge  of  the  replevin  bond 
to  take  a  judgment  by  confession  in  a  sum  certain, 
or  on  the  statute  17  Car.  II.,  without  a  judgment 
of  retorno  habendo  at  the  common  law,  and  it  was 
said  that  the  condition  of  the  replevin  bond  was  to 
prosecute  with  effect,  and  return  the  goods,  in  case 
a  return  was  awarded;  that  the  extent  of  the  obli- 
gation was  that  he  should  succeed,  or  comply  with 
a  judgment  of  redelivery  ;  that  the  bond  contained 
a  condition,,  with  alternate  branches  coupled  dis- 
junctively, and  that  the  effect  of  rendering  one  of 
them  impossible  was  to  discharge  the  obligor,  and 
that  the  surety  did  not  undertake  that  his  princi- 
pal should  answer  the  statutory  part  of  the  judg- 
ment.2 

But  in  the  later  case  of  Gibbs  v.  Bartlett,  this 
ground  was  abandoned.3     In  this  case  the  action 

1  See  Morgan  v.  Griffith,  7  Mod.  380. 

2  Kimmel  v.  Kint,  2  Watts  431. 

3  Gibbs  u.  Bartlett,  2  W.  &  S.  33.     See  Moore  v.  Bowuiaker, 
7  Taunt.  97. 


258  OF    THE    REPLEVIN    BOND. 

of  replevin  was  tried,  and  a  verdict  and  judgment 
rendered  for  plaintiff,  which  was  removed  to  the 
supreme  court  by  writ  of  error,  where  the  judg- 
ment was  reversed,  and  no  venire   de  novo  was 
awarded.    The  plaintiff  Gibbs  defendant  in  the  re- 
plevin suit  obtained  an  assignment  of  the  replevin 
bond,  and  brought  his  action  upon  it.    The  defend- 
ants relied  upon  the  fact,  that  although  the  judg- 
ment was  reversed,  yet  no  further  or  other  judg- 
ment or  order  of  the  said  court  was  rendered  or 
made  in  the  said  suit ;  and  on  demurrer  to  this 
plea,  the  court  below  gave  judgment  for  the  de- 
fendant, but  the  judgment  was  reversed.     In  the 
argument  before  the  supreme  court,  the  case  of 
Kimmel  v.  Kint  was  relied  upon  by  the  defendant 
in  error,  who  also  argued  that  he  had  prosecuted 
his  suit  with  effect,  as  he  had  everything  he  sought 
to  recover.     He  was  in  possession  of  the  property, 
and  no  remedy  given  to  his  adversary  to  deprive 
him  of  it.     The  opinion  of  Judge  Rogers  is  so  full 
upon  this  point,  that  it  is  given  entire.     "The 
condition  of  the  replevin  bond  is,"  said  he,  "  to 
prosecute  the  suit  with  effect,  and  make  return  of 
the  goods  and  chattels,  if  a  return  thereof  shall  be 
adjudged.     It  is  not,  as  is  erroneously  supposed, 
in  Kimmel  v.  Kint  in  the  alternative,  with  alter- 
nate branches  coupled  disjunctively,  but  they  are 
distinct  and  independent  of  each  other,  and  a  breach 


OF    THE    REPLEVIN    BOND.  259 

of  one  of  them  will  occasion  a  forfeiture.  Thus  it 
has  been  ruled,  that  if  the  plaintiff  neglect  to  levy 
his  plaint  at  the  next  county  court,  or  if  he  make 
default  in  any  of  the  subsequent  proceedings,  or 
do  not  prosecute  the  suit  with  effect,  the  defendant 
may  take  an  assignment  of  the  bond.1  The  term 
prosecuting  with  effect,  means  with  success,2  and 
extends  to  one  continued  prosecution  from  the 
commencement  until  the  termination  of  the  suit. 
Thus,  where  to  debt  on  bond  the  defendant  pleaded 
that  he  had  prosecuted  the  suit  with  effect  in  the 
county  court,  but  that  a  writ  of  error  had  been 
brought  in  the  court  above,  where  the  judgment 
had  been  reversed ;  and  the  plaintiff  replied,  that 
the  judgment  in  the  court  above  also  was,  that  the 
plaint  in  the  court  below  should  abate,  and  that 
there  should  be  a  return  irreplevisable ;  upon  de- 
murring to  this  replication  the  court  held  that  the 
words, '  to  prosecute  with  effect'  in  the  court  below, 
were  not  confined  to  the  prosecution  in  that  court 
only,  but  extended  also  to  the  prosecution  of  the 
writ  of  error,  as  that  was  part  of  the  suit  com- 
menced below.3     So  where  the  plaint  is  removed 

1  Tumor  v.  Turner,  2  Brod.  &  B.  112.     Ex  parte  Boyle,  2  D. 
&  R.  13.     s.  c.  4  Moore  616. 

2  Perreau  v.  Bevan,  5  B.  &  C.  284.    Jackson  v.  Hanson,  8 
M.  &  W.  477. 

3  Chapman  v.  Butcher,  Carth.  248,  519.     Butcher  v.  Porter, 
1  Show.  400.    Gwillim  v.  Holbrook,  1  Bos.  &  Pull.  410. 


2G0  OF    THE    REPLEVIN    BOND. 

into  a  supreme  court,  the  condition  of  the  bond  is  not 

satisfied  by  having  prosecuted  the  suit  with  effect 

in  the  county  court ;  but  the  plaintiff  must  follow 

it  into  the  court  above.1  It  has  also  been  held  that 

the  bond  may  become  forfeited,  by  not  prosecuting 

the  suit  without  delay.     Thus,  where  the  plaint 

was  levied  in  the   county  court,   and  two  years 

were  allowed  to  elapse  without  any  further  steps 

being  taken,  it  was  held  the  obligee  might  recover, 

although  judgment  of  non  pros  was  never  signed 

in  the  county  court  f  and  where  the  plaintiff  in 

replevin  is  guilty  of  a  breach  of  the  condition,  by 

not  prosecuting  his  suit  without  delay,  it  need  not 

appear  that  the  suit  is  determined.3     The  same  rule 

holds  good  where  a  suit  has  been  discontinued.4 

In  the  cases  cited,  no  judgment  of  de  retorno  ha- 

bendo  was  entered.     Of  course  such  a  judgment 

is  not  indispensable  to  warrant  a  recovery  on  the 

replevin  bond,5  as  seems  to  have  been  the  opinion 

of  the  court  in  Kimmel  v.  Kint.     It  is  admitted, 

that  the  writ  of  de  retorno  habendo  is  not  in  use. 

Indeed  it  is  doubtful  whether  such  a  writ  was  ever 

1  Vaughan  v.  Norris,  Cas.  Temp.  Hard.  13Y.   1  Comyn's  Dig. 
269. 

2  Axford  v.  Perrett,  4  Bing.  586. 

3  Harrison  v.  Wardle,  5  B.  &  Adol.  146. 

4  Hurlstone  on  Bonds  68.     Badlam  v.  Tucker,  1  Pick.  286. 

5  Waterman  v.  Yea,  2  Wils.  41. 


OF    THE    REPLEVIN    BOXD.  261 

issued  in  this  state.1  It  would,  therefore,  seem  to 
be  perfectly  nugatory  to  send  this  case  back,  that 
such  a  judgment  may  be  entered;  it  would  increase 
the  trouble  and  expense  for  no  manner  of  advan- 
tage to  any  person ;  for  although  it  is  said,  that 
the  surety  should  not  be  deprived  of  an  opportunity 
to  discharge  himself  by  a  return  of  the  goods,  yet 
it  seems  very  questionable  whether,  at  any  time, 
the  defendant  could  save  the  forfeiture  by  a  tender 
of  return  of  the  goods.  The  judgment  de  retorno 
habendo  is  not  intended  for  the  benefit  of  the  de- 
fendant, but  of  the  plaintiff  in  the  replevin  bond, 
who,  in  some  cases,  perhaps,  might  prefer  a  return 
of  the  goods  to  the  damages  assessed  by  a  jury. 
It  would  be  anything  but  an  act  of  justice  to  per- 
mit a  person,  who  has  wrongfully  deprived  another 
of  his  goods,  and  retained  them  in  his  possession 
until  they  were  nearly  destroyed  by  time  and  use, 
afterwards,  when  judgment  was  rendered  against 
him  for  his  wrongful  act,  to  save  a  forfeiture  of  the 
bond  by  an  offer  to  return  the  article  in  its  depre- 
ciated condition.  ]Nor  can  the  sureties  be  placed 
in  any  better  situation  than  the  principal.  But, 
be  this  as  it  may,  we  think  it  very  clear  that  the 

1  See  Com.  v.  Rees,  3Whart.  124.  In  the  case  on  which  that 
was  founded,  a  retorno  habendo  is  said  to  have  issued;  and 
indeed,  there  are  numerous  instances  of  the  writ  on  the  dock- 
ets of  the  courts  in  the  city  and  county  of  Philadelphia. 


262  OF    THE   REPLEVIN   BOND. 

judgment  of  the  court,  in  the  case  at  bar,  was  er- 
roneous. The  case  is  this :  Alexander  !Neely  & 
Co.  brought  replevin  against  Eli  Gibbs,  who  is 
the  present  plaintiff.  Neely  obtained  judgment 
against  Gibbs  in  the  court  of  common  pleas,  which 
was  removed  by  writ  of  error  to  the  supreme 
court.  On  argument,  the  judgment  of  the  court 
of  common  pleas  was  reversed,  but  no  venire  de 
novo  was  awarded.  And  the  reason  of  this  entry 
appears,  in  the  report  of  the  case  (7  Watts  305), 
to  have  been  because,  upon  the  admitted  state  of 
facts,  the  plaintiff  could  not  recover.  The  judg- 
ment was  advisedly  entered  'judgment  reversed,' 
without  more ;  for,  according  to  our  practice,  which 
saves  expense  and  trouble,  such  a  judgment  is  a 
final  judgment.  Either  party  was  at  liberty  to 
ask  for  a  venire  de  novo ;  but  both  were  content 
with  the  judgment.  How,  then,  with  this  entry 
on  the  record,  can  the  defendant  say  that  he  has 
performed  the  condition  of  his  bond,  which  obliges 
him  to  prosecute  his  suit  with  effect,  and  with- 
out delay?  The  case  comes  directly  within  the 
principles  of  the  cases  cited  above."1 

In  the  same  spirit  it  has  been  also  held,  that,  if 
the  plaintiff  in  replevin  gives  bond  in  the  usual 
form,  and  the  defendant  claims  the  property  and 

1  Gibbs  v.  Bartlett,  2  W.  &  S.  33. 


OF    THE    REPLEVIN    BOXD.  263 

retains  it,  giving  bond,  and  afterwards  arbitrators 
award  no  cause  of  action,  the  plaintiffs  surety  is 
liable  on  the  bond  for  the  costs  of  the  replevin 
suit.1  If  the  plaintiff's  neglect  to  prosecute  the 
suit  has  been  occasioned  by  the  act  of  the  defend- 
ant, as  by  his  not  appearing  to  the  summons  f  or, 
if  the  proceedings  have  been  stayed  by  injunction, 
and  during  that  period  the  plaintiff  dies,  the  de- 
fendant will  not  be  entitled  to  an  assignment  of 
the  bond.3 

An  agreement  between  the  plaintiff,  and  defend- 
ant in  replevin,  entered  of  record,  by  which  the 
plaintiff,  who  had  been  tenant  to  the  defendant, 
agreed  that  all  proceedings  in  the  suit  should 
cease,  that  the  plaintiff  should  pay  the  defendant 
a  certain  sum,  that  each  party  should  pay  their 
own  costs,  and  that  the  replevin  bond  should  stand 
as  a  security  for  the  observance  of  these  terms,  is 
evidence  of  the  determination  of  the  suit,  and  that 
the  plaintiff  did  not  prosecute  it  with  effect.  And 
on  failure  to  comply  on  the  part  of  the  plaintiff, 
the  sureties  in  the  bond  are  liable.  But  they  are 
not  bound  by  the  amount  agreed  to  be  paid  by  the 
plaintiff  in  replevin. 

1  Tibball  v.  Cahoon,  10  Watts  232. 

2  Seal  v.  Phillips,  3  Price  17. 

3  Ormond  o.  Brierly,  12  Mod.  380.     s.  c.  Carth.  519. 

4  Hallett  v.  Mountstephen,  2  Dow.  &  Ry.  343. 


264  OF    THE   REPLEVIN    BOND. 

Upon  the  neglect  of  the  plaintiff  to  comply  with 
the  conditions  of  the  bond,  it  may  be  assigned 
either  to  the  avowant  or  to  the  person  making 
cognizance,  when  there  is  no  avowant ;  or  to  both 
the  avowant  and  the  person  making  cognizance, 
who  may  sue  jointly  upon  it.  The  assignment 
may  be  to  the  avowant  only,  though  there  be  a 
conusor :  but  it  seems  doubtful  whether  there  can 
be  an  assignment  to  the  conusor  alone,  where  there 
is  an  avowant.1 

Where  the  replevin  is  of  a  distress  for  rent,  and 
the  bond  is  taken  under  the  11  Geo.  II.,  or  under 
the  Pennsylvania  act  21st  March,  1772,  and  is 
assigned  by  the  sheriff  under  hand  and  seal  in  the 
presence  of  two  credible  witnesses,  the  assignee 
may  sue  thereon  in  his  own  name.  But  where  the 
replevin  is  not  of  a  distress  for  rent,2  or  where  the 
bond  is  not  taken  under  the  acts  above  named,  the 
action  should  be  brought  in  the  name  of  the  sheriff.3 


1  Page  v.  Earner,  1  Bos.  and  Pul.  378.  Archer  v.  Dudley,  1 
Bos.  &  Pul.  381,  n.  a.     Phillips  v.  Price,  3  M.  S.  180. 

2  Knapp  v.  Colburn,  4  Wend.  616.  Tibbal  v.  Cahoon,  10 
Watts  232.  City  Council  v.  Price,  1  McCord  299.  Waples  v. 
Mcllvaine,  5  Har.  381.     Acker  v.  Finn,  5  Hill  293. 

3  Austen  v.  Howard,  7  Taunt.  28.     Wilk.  Repl.  116. 


OF    THE   REPLEVIN    BOND.  265 

The  authority  given  by  the  11  Geo.  II.  to  the 
assignee  to  sue  in  his  own  name,  does  not  apply  to 
those  cases.  And  the  bond,  not  being  a  bond  for 
the  payment  of  money,  is  not  within  the  act  of  28th 
May,  1715,  and  so  it  has  been  ruled  in  the  district 
court,  and  at  nisi  prius  in  the  county  of  Philadel- 
phia. 

When  the  plaintiif  in  replevin  is  guilty  of  a 
breach  of  the  condition,  by  not  prosecuting  his  suit 
without  delay,  it  need  not  appear  that  the  suit  is 
determined.1 

Damages  may  be  recovered  against  the  sureties 
to  the  amount  of  the  penalty  in  the  bond  for  the 
value  of  the  property,  and  for  the  damages  found 
in  favor  of  the  defendant,  and  for  costs,2  and  after 
some  discussion,  the  English  courts  appear  to  have 
agreed  that  in  the  action  for  taking  insufficient 
sureties,  the  sheriff  is  liable  to  the  same  extent; 
Eyre,  C.  J.,  saying:  "The  justice  and  good  sense 
of  the  case  seem  to  be,  that  the  sheriff  should  be 
liable  no  further  than  the  sureties  would  have  been, 

1  Harrison  v.  Wardle,  5  B.  &  Adol.  146.  Axford  v.  Perrett, 
4  Bing.  586. 

*  Bramscombe  v.  Scarborough,  6  Adol.  &  Ellis.  N.  S.  13. 
Gainsford  u.  Griffith,  1  Wms.  Saund.  58,  n.  1.  Balsley  c.  Hoff- 
man, 1  Harris  603. 


266  OF    THE   REPLEVIN   BOND. 

if  the  sheriff  had  done  his  duty,  that  the  responsi- 
bility of  the  sureties  was  limited  by  11  Geo.  II.,  to 
double  the  value  of  the  goods  distrained,  and  that 
sura  ought  to  be  the  measure  of  damages  against 
the  sheriff."1  In  a  previous  case,  in  the  court  of 
king's  bench,  it  had  been  held  that  damages  could 
not  be  recovered  beyond  the  value  of  the  distress  f 
and  in  an  intermediate  case,  Lord  Loughborough 
held  that  damages  might  be  recovered  beyond  the 
penality  of  the  bond.3  In  Pennsylvania  the  courts 
seem  to  have  followed  the  court  of  common  pleas 
in  Evans  v.  Brander,  and  have  decided  that  the 
measure  of  damages  in  an  action  against  the  sheriff 
for  taking  insufficient  sureties,4  and  also  in  an 
action  against  the  sureties  in  the  replevin  bond,  is 
the  value  of  the  property,  and  damages  for  the  de- 
tention, usually  interest  from  the  time  of  the  taking 
and  costs.5  In  cases  of  fraud,  or  wanton  injury, 
damages  beyond  the  value  and  interest  may  be 

1  Evans  v.  Brander,  2  H.  Bl.  548.  Jeffrey  v.  Bastard,  4  Adol. 
&  Ellis  823.     Paul  v.  Goodluck,  2  Bing.  N.  C.  220. 

2  Yea  v.  Lethbridge,  4  T.  R.  433. 

3  Concanen  v.  Lethbridge,  2  H.  Bl.  40. 

4  Murdoch  v.  Will,  1  Dall.  341. 

5  Gibbs  v.  Bartlett,  2  W.  &  S.  29.  M'Cabe  v.  Morehead,  1 
W.  &  S.  513.  Balsley  v.  Hoffman,  1  Harris  604.  Arnold  v. 
Bailey,  8  Mass.  145. 


OF   THE   REPLEVIN    BOND.  1^)7 

given,1  and  in  Gibbs  v.  Bartlctt  they  held  that  the 
value  in  the  writ  was  only  prima  facia  evidence  of 
the  value  of  the  goods.2 

By  the  statute  of  Westminster,  the  liability  of 
the  sheriff  for  not  taking  pledges  according  to  its 
provisions,  is  confined  to  the  price  of  the  beasts. 
The  statute  of  Geo.  II.,  it  is  believed,  was  intended 
rather  as  an  improvement  and  modification  of  the 
old  security,  than  as  the  creation  of  a  new  one. 
As  the  real  damage,  which  the  defendant  has  sus- 
tained, is  the  deprivation  of  his  property  from  the 
time  of  the  replevin,  or  if  the  replevin  is  of  a  dis- 
tress for  rent,  the  deprivation  of  so  much  property 
from  application  to  the  payment  of  his  rent,  the 
true  measure  of  that  damage,  it  would  seem,  is  the 
value  of  the  property  at  that  time  of  the  replevin, 
with  interest  from  that  date,  and  the  costs  of  suit; 
or,  if  the  replevin  is  of  a  distress  for  rent,  and  the 
goods  taken  exceed  in  value  the  rent  due,  then  for 
the  amount  of  the  rent.  On  the  payment  of  that 
sum,  the  courts  will  stay  the  proceedings  on  the 
bond.3 

1  M'Cabe  v.  Morehead,  1  W.  &  S.  513.  Brizsee  anil  Torrence 
v.  Maybee,  21  Wend.  144. 

'2W.&S.  35. 

3  Gingell  v.  Turnbull,  3  Bing.  N.  C.  881.  Bramscombe  v. 
Scarborough,  6  Adol.  &  Ellis,  N.  S.  13.  Gould  v.  Warner,  3 
Wend.  54. 


268  OF    THE   REPLEVIN    BOND. 

The  confusion,  if  any  there  be,  seems  to  have 
arisen  from  confounding'  the  extent  of  the  sureties' 
liability  with  the  amount  the  defendant  in  replevin, 
the  plaintiff  in  the  suit  on  the  bond,  is  damnified. 
The  plaintiff  in  the  suit  on  the  replevin  bond,  as 
against  the  plaintiff  in  replevin,  is  entitled  to  the 
value  of  his  property  with  damages  for  its  deten- 
tion, usually  equal  to  the  interest  on  its  value  and 
costs ;  except  in  cases  where  the  replevin  is  of  a 
distress  for  rent,  in  which  case  he  is  entitled  to  the 
value  of  the  distress,  if  his  rent  arrear  equalled 
that  amount,  if  not  to  the  value  of  his  rent  arrear 
with  damages  and  double  costs  of  suit.  If  his  rent 
arrear  was  greater  than  the  value  of  the  distress, 
he  was  not  entitled  to  anything  beyond  that  value. 
The  liability  of  the  surety  in  replevin  is  limited  by 
the  penalty  of  his  bond ;  the  preceding  observa- 
tions show  that  his  liability  may  be  less  than  that 
amount ;  it  cannot  exceed  it.1 

In  an  action  on  the  replevin  bond,  where  the  re- 
plevin was  of  a  distress  for  rent,  the  district  court 
for  the  city  and  county  of  Philadelphia  held,  that 
the  rent  in  arrear  was  the  real  subject  of  contro- 

1  Hunt  v.  Round,  2  Dowl.  558.  Ward  v.  Henley,  1  Y.  &  J. 
285.  Hefford  v.  Alger,  1  Taunt.  218.  Gould  v.  Warner,  3 
Wend.  54. 


OF    THE   REPLEVIN   BOND.  269 

vcrsy ;  where  that  was  under  one  hundred  dollars, 
the  court  had  not  jurisdiction.1 

In  the  case  of  Gingell  v.  Turnbull,  a  rule  nisi 
after  judgment  by  default  in  an  action  on  a  reple- 
vin bond  taken  in  the  penalty  of  125  pounds,  to 
stay  proceedings  upon  payment  into  court  of  G2 
pounds,  at  which  the  goods  distrained  had  been 
vnlned  by  a  surveyor  employed  by  the  sureties, 
together  with  the  costs;  the  rent  in  arrear  was 
104  pounds.  Plaintiff  showed  cause  on  affidavit 
that  the  goods  were  worth  more  than  enough 
to  cover  the  rent  and  all  charges,  but  objected  to 
try  the  value  of  the  goods  on  affidavit ;  whereupon, 
the  court  made  the  rule  absolute,  on  paying  into 
court  the  value  of  the  goods,  together  with  the 
costs ;  the  value  of  the  goods  to  be  ascertained  by 
the  prothonotary.2 

Under  the  clause  in  the  act  which  declares  that 
the  court  in  which  the  action  on  the  replevin  bond 
shall  be  brought,  may,  by  a  rule  of  the  same  court, 
give  such  relief  to  the  parties  upon  such  bond  as 
may  be  agreeable  to  justice  and  reason,  and  such 
rule  shall  have  the  nature  and  effect  of  a  defea- 

1  Freedenburg  v.  Mcctcr,  7  Penn.  Law  Jour.  244. 

2  Gingell  v.  Turnbull,  3  Bing.  N.  C.  881. 
18 


270  OF    THE    REPLEVIN    BOND. 

sance  to  such  bond ;  the  courts  will  interfere  to 
prevent  the  accumulation  of  costs,  where  several 
actions  are  brought  against  the  principal  and  sure- 
ties. In  a  case  where  three  actions  were  brought 
on  one  replevin  bond  against  the  principal,  and 
each  of  the  two  sureties,  and  a  rule  had  been  ob- 
tained to  stay  all  proceedings  in  the  three  actions, 
on  payment  of  costs  in  the  first  action  only,  or 
upon  such  other  terms  as  the  court  should  direct ; 
the  court  made  a  rule,  that  all  proceedings  in  the 
three  actions  should  be  stayed  on  payment  of  the 
rent  and  costs ;  otherwise,  the  rule  to  be  discharged, 
and  the  plaintiff  to  proceed  in  one  action,  and  the 
defendants  in  the  other  two  actions  to  be  bound 
by  the  event  of  that  one.1 

The  court  will  not  stay  the  proceedings  on  a 
replevin  bond,  unless  it  clearly  appears  that  the 
application  is  made  on  behalf  of  the  sureties  and 
not  of  the  principal.2  "Where  one  of  the  sureties 
in  a  replevin  bond  was  a  material  witness  in  the 
cause,  the  court  allowed  another  to  be  substituted 
on  his  being  approved  of  by  the  prothonotary,  and 
notice  given  to  the  defendants'  attorney.3 

1  Bartlett  v.  Bartlett,  4  Mann.  &  Grang.  269. 

2  Wharton  v.  Blacknell,  12  Mees.  &  Wells.  558. 

3  Bailey  v.  Bailey,  1  Bing.  92.  Amos  v.  Ginnet,  4  Scam. 
440. 


CHAPTER   XVI. 

OP    THE   DECLARATION    AND    PLEADINGS    IX    THE 
ACTION    ON   THE    REPLEVIN   BOND. 

The  declaration  on  the  replevin  bond  concisely 
states  the  proceedings  in  replevin,  the  failure  in 
fulfilling  the  condition  of  the  bond,  and  the  assign- 
ment of  the  bond.  If  the  distress  were  made  by 
the  plaintiff  as  bailiff  of  another,  it  is  usually  so 
stated  ;*  but  in  a  declaration  by  two  persons,  it  is 
not  necessary  to  state  that  the  one  distrained  as 
bailiff,2  nor  need  the  declaration  set  out  the  jroods 
distrained  ;  and  if  it  state  the  bond  was  conditioned 
for  making  a  return  of  the  goods  in  the  condition 
mentioned,  and  thereupon  the  sheriff  replevied  the 
same,  it  sufficiently  appears  the  bond  was  condi- 
tioned for  a  return  of  the  goods  distrained.3  The 
condition  should  be  correctly  stated.4  The  decla- 
ration is  not  double,  although  both  parts  of  the 
condition  are  negatived,  and  if  a  sufficient  breach 
appear,  the  plaintiff  will  be  entitled  to  recover, 
although  the  breach  is  not  formally  assigned.6 

1  Dias  u.  Freeman,  5  T.  R.  195.     See  appendix  for  form. 

2  Phillips  v.  Price,  3  M.  &  S.  180. 

3  Phillips  v.  Price,  3  M.  &  S.  180. 

4  Halheadu  Abrams,  3  Taunt.  81.     Glover  v.  Coles,  1  Bing.  6. 

5  Perrean  v,  Bevan,  5  B.  &  G.  284. 


272      OF  THE  DECLARATION  AND  PLEADINGS,  ETC. 

Non  est  factum,  which  puts  in  issue  the  execu- 
tion of  the  bond  or  the  validity  of  its  execution  in 
law,  is  the  general  issue.1  Under  the  plea  of  pay- 
ment with  notice,  any  equitable  defence  may  be 
given  in  evidence  in  Pennsylvania.  Thus,  where 
two  sureties  are  named  in  the  body  of  the  bond, 
and  but  one  executes  it,  this  fact  may  be  given  in 
evidence  under  the  plea  of  payment,  and  is  a  de- 
fence, unless  it  appear  that  the  defendant  waived 
the  execution  by  the  other  surety.2  In  Austen  v. 
Howard,3  a  plea  that  the  bond  purported  to  be  en- 
tered into  by  two  sureties,  but  was  executed  only 
by  one,  was  held  to  be  bad,  but  by  Burrough,  jus- 
tice, this  was  from  a  defect  in  pleading.4 

!Non  damnificatus  is  a  proper  plea  when  the 
condition  of  the  bond  is  merely  to  indemnify  and 
save  harmless.  It  is  not  so  when  the  condition  is 
to  discharge  or  acquit  the  plaintiff  from  liability 
as  from  a  bond  or  other  thing  done  or  given  by 
him  creating  a  liability.  In  this  latter  case,  the 
defendant,  in  pleading,  must  set  forth  affirmatively 
the  special  manner  of  performance,  and  show  that 

1  Steph.  on  Plead.  116.     Zeigler  v.  Sprenkle,  7  W.  &  S.  175. 

2  Sharp  v.  United  States,  4  Watts  21. 

3  7  Taunt.  28. 

*  Austin  v.  Howard,  7  Taunt.  327. 


OF  THE  DECLARATION  AND  PLEADINGS,  ETC.      273 

the  plaintiff  has  been  acquitted  of  his  liability, 
and  in  what  way  it  has  been  effected.1 

All  matters  of  defence  may  be  pleaded  specially. 
Plea  by  surety  that  the  judgment  was  obtained 
against  the  principal  by  fraud,  namely,  by  the 
plaintiff  in  that  suit  fraudulently  procuring  the 
defendant  to  confess,  and  by  the  defendant  falsely 
and  fraudulently  confessing  the  action,  is  bad  on 
demurrer,  unless  it  allege  it  was  for  the  purpose 
of  defrauding  the  sureties.2  It  is  not  a  good  plea, 
to  an  action  on  the  bond  brought  after  an  award, 
that  the  proceedings  in  replevin  were  suspended 
by  agreement  during  an  arbitration,  to  which  were 
referred  the  time  of  payment  of  the  rent,  with  cer- 
tain claims  of  the  tenant  on  the  landlord  for  dam- 
ages, with  Kberty  for  the  tenant  to  deduct  them, 
when  awarded  from  the  rent.3  It  seems  that  it 
would  be  ground  for  relief  in  equity,  or  if  the  ap- 
plication was  by  motion.4 

When  the  declaration  stated  the  judgment  in 
the  replevin  suit  to  have  been  a  retorno  habendo, 
awarded  for  want  of  a  plea  to  an  avowry,  a  plea 

1  Neville  v.  Williams,  7  Watts  421. 

2  Moore  u.  Bowmaker,  7  Taunt.  97. 

3  lb.     Aklridge  v.  Harper,  10  Bing.  118. 

4  Archer  v.  Hale,  4  Bing.  4G4.  Aklridge  v.  Harper,  10 
Bing.  118.     See  Donnelly  v.  Dunn,  2  Bos.  &  Pul.  45. 


274      OF  THE  DECLARATION"  AND  PLEADINGS,  ETC. 

that,  after  the  judgment  for  a  return,  a  writ  to 
inquire  of  the  arrear  of  the  rent,  and  the  value  of 
the  cattle,  goods,  &c,  distrained,  was  prayed  by 
the  avowant,  granted,  and  executed,  and  that 
thereupon  avowant  had  judgment  to  recover  the 
arrear  of  rent  found,  together  with  a  sum  for  his 
costs  and  damages,  was  held  ill  on  demurrer  ;  and 
the  execution  of  such  a  writ  is  no  discharge  of  the 
sureties.1 

By  the  act  of  the  11th  of  April,  1848,  where  a 
judgment  has  heen  obtained  since  the  passage  of 
the  act,  against  two  or  more  joint  or  several  obli- 
gors, the  death  of  one  or  more  of  the  defendants 
shall  not  discharge  his  or  their  estate  or  estates, 
real  or  personal,  from  the  payment  thereof;  but 
the  same  shall  be  payable  by  his  or  their  executors 
or  administrators,  as  if  the  judgment  had  been 
several  against  the  deceased  alone.2  This  does 
not  seem  to  reach  the  case  of  a  death  pending  the 
action,  in  which  case  the  remedy  against  the  assets 
of  the  deceased  will  still  be  gone.3 

1  Tumor  v.  Turner,  2  Brocl.  &  B.  10S.  See  Gibbs  v. 
Bartlett,  2  W.  &  S.  29.  Perreau  v.  Bevan,  5  B.  &  C.  284,  and 
see  ante,  pages  252,  253,  &c. 

2  Pamph.  Laws  of  Pa.,  1848,  536.  Brewster's  Adinr.  v. 
Sterrett,  8  Casey  115.     Moore's  Appeals,  10  Casey  411. 

3  Walter  v.  Ginrich,  2  Watts  204.  Finney  v.  Cochran,  1  W. 
&  S.  112. 


CHAPTER    XVII. 

OF  THE  PROCEEDINGS  AGAINST   THE  SHERIFF  FOR 
TAKING  INSUFFICIENT  PLEDGES. 

If  the  sheriff  neglect  to  take  a  bond,  the  court 
will  not  grant  an  attachment  against  him,1  neither 
will  they  order  him  to  pay  the  costs  recovered  by 
the  defendant  in  replevin,  but  the  proper  remedy 
is  to  proceed  against  him  by  an  action  on  the  case.2 
The  same  action  lies  for  taking  insufficient  pledges.3 
And  this  action  is  maintainable  even  after  the 
avowant  or  person  making  cognizance  has  taken 
an  assignment  of  the  replevin  bond,  and  sued  the 
principal  and  sureties :  for  such  assignment  is  no 
waiver  of  any  proceedings  against  the  sheriff.4 
The  supreme  court  of  Pennsylvania  have  re- 
stricted this  rule  so  far,  as  to  suspend  the  action 
against  the  sheriff,  while  proceedings  towards  satis- 
faction by  judgment  and  execution  against  the 
sureties  are  in  progress.5    The  conusor  must  bring 

1  Twells  v.  ColviUe,  Willes  375.     Rex  v.  Lewis,  2  T.  R.  GIT. 

2  Tesseyman  v.  Gildart,  4  Bos.  &  Pul.  292.  Cro.  Car.  446. 
Sir  Wm.  Jones  378.  3  2  Inst.  340. 

4  1  Wms.  Saund.  Rep.  195  ;  or  Myers  v.  Clark,  3  W.  &  S.  539. 

5  Commonwealth  v.  Rees,  3  Whart.  124. 


276      OF   PROCEEDINGS   AGAINST    THE   SHERIFF 

the  action  if  there  is  no  avowant.1  In  Pennsyl- 
vania, instead  of  proceeding  by  action  on  the  case, 
the  sheriff  and  his  sureties  may  be  sued  on  his 
official  bond.2 

There  is,  in  Pennsylvania,  as  we  have  seen,  no 
legislative  provision  by  which  the  sheriff  is  re- 
quired to  take  a  bond  from  the  plaintiff  in  replevin, 
before  executing  the  writ,  except  in  cases  of  reple- 
vin of  a  distress  for  rent.  This  fact  seems  to  have 
been  overlooked  in  part  of  the  reasoning  in  the 
case  of  Cummings  v.  Gann.3  The  sheriff,  never- 
theless, always  takes  such  bonds,  and  they  have 
been  frequently  assigned  and  sued  upon,  where 
the  replevin  was  not  of  a  distress.  "Whether  the 
sheriff  would  be  liable  to  an  action  on  the  case,  if 
he  omitted  to  take  such  a  bond,  or  if  the  sureties 
proved  insufficient,  does  not  appear  to  have  been 
agitated.  In  Pearce  v.  Humphreys,  where  the 
plaintiff  was  allowed  to  recover  in  such  an  action, 
the  objection  was  not  taken;  on  the  contrary,  the 
sheriff's  obligation  to  take  the  bond  seems  to  have 
been  assumed  on  all  hands.4 

1  Archer  v.  Dudley,  1  Bos.  &  Pul.  378. 

2  Act  21st  March,  1803,  4  Sm.  Laws  45.  Act  14th  June, 
1836,  Pamph.  L.  637.  Myers  v.  Com.,  2  W.  &  S.  60.  Com. 
v.  Rees,  3  Whart.  124. 

3  2  P.  F.  Smith,  484,  488.  *  14  S.  &.  R  23. 


FOR   TAKING    INSUFFICIENT   PLEDGES.       277 

According  to  the  more  recent  authorities  in 
England,  and  in  some  of  the  United  States,  the 
sheriff  is  not  responsible  for  the  sufficiency  of  the 
sureties  in  replevin  at  the  end  of  the  proceedings. 
It  is  enough  if  they  were  apparently  responsible 
at  the  time  of  taking  them.1  But  he  is  responsi- 
ble if  either  of  the  sureties  is  insufficient,2  and  is 
also  liable  for  negligence  if  he  lose  the  bond.3 
Notice  of  the  insufficiency  of  the  sureties,  and 
general  reputation  of  their  want  of  credit  in  the 
neighborhood,  are  alike  evidence  against  him.2  In 
Pennsylvania,  the  sheriff  is  held  to  a  much  more 
rigid  accountability,  for  he  is  answerable  for  the 
sufficiency  of  the  sureties  in  the  replevin  bond,  at 
the  termination  of  the  suit.  It  is  not  enough  that 
they  were  sufficient  when  they  were  taken,4  and  it 
is  incumbent  on  the  sheriff  to  furnish  proof  of  the 
execution  of  the  bond.5  It  is  not  necessary  for 
the  plaintiff,  as  against  the  sheriff,  to  prove  the  exe- 
cution by  the  sureties,  proof  of  the  assignment  by 

1  Hinclle  v.  Blades,  5  Taunt.  225.  Sutton  v.  "Way to,  8  Moore 
27.  Commonwealth  v.  Thomson,  3  Dana  301.  Jeffrey  v.  lius- 
tard,  4  A.  &  E.  823. 

2  Scott  u.  Waithman,  3  Stark.  168. 

3  Perreau  w.  Bevan,  5  Barn.  &  Cress.  284. 

4  Oxley  v.  Cowperthwaite,  1  Dall.  340.  Pearce  w.  Hum- 
phreys, 14  S.  &  R.  23.     Myers  o.  Clark,  3  W.  &  S.  535. 

5  Baxter  v.  Graham,  5  "Watts  418. 


278      OP   PROCEEDINGS   AGAINST   THE   SHERIFF 

him  is  sufficient.1  The  declaration  in  the  action 
on  the  case,  states  the  distress,  and  the  replevin, 
and  the  proceedings  in  the  replevin  suit,  termi- 
nating with  the  judgment  of  retorno  habendo. 
Where  the  replevin  was  of  a  distress  for  rent,  it 
is  said  that  in  the  action  against  the  sheriff  for 
taking  insufficient  sureties  it  is  not  necessary  to 
aver  a  judgment  of  retorno  habendo:2  but  that 
such  averment  is  necessary  where  the  replevin 
was  of  cattle  distrained  damage  feasant.3  The 
declaration  then  states  the  duty  of  the  sheriff  to 
take  a  replevin  bond,  but  that  he  neglected  to  take 
such  bond,  and  that  the  plaintiff  hath  not  obtained 
a  return  of  the  goods  or  their  value,  or  payment  of 
the  arrears  of  rent ;  and  in  the  case  of  taking  in- 
sufficient pledges,  it  is  stated,  that  the  sheriff  did 
take  a  bond  from  certain  persons  as  sureties,  and 
that  they  were  not  good,  sufficient,  or  responsible 
sureties.  The  general  allegation  of  insufficiency 
is  enough  in  Pennsylvania;  in  England,  the 
modern  precedents  allege  insufficiency  at  the  time 
of  taking — special  damage  is  generally  added.4  If 

1  Barnes  v.  Lucas,  Ryan  &  Moody  264. 

2  Perreau  v.  Bevan,  5  Barn.  &  Cress.  284.     Gibbs  v.  Bart- 
lett,  2  W.  &  S.  29. 

3  Hucker  v.  Gordon,  1  Cromp.  &  Mees.  58. 

4  See  Appendix  for  form.     Pearce  v.  Humphreys,  14  S.  &  R. 
23. 


FOK   TAKIXG-   INSUFFICIENT    PLEDGES.      279 

there  is  any  difficulty  in  proving  that  the  sheriff 
did  not  take  a  replevin  bond,  add  a  count  for  his 
not  having'  assigned  the  bond  upon  request,  if  that 
is  the  fact.  In  New  York  it  has  been  held  that 
under  the  revised  statutes  it  is  necessary  to  aver 
that  a  writ  of  retorno  habendo  has  been  issued, 
and  a  return  of  elongata  made  thereon.1  The 
general  issue  is  not  guilty,  which  puts  in  issue 
the  whole  of  the  allegations  on  the  record  which 
must  be  proved  as  alleged.  The  record  of  the 
replevin  suit  is  evidence  of  the  result,  and  if  the 
sureties  have  been  sued  ineffectually,  the  record 
in  that  suit  is  generally  given  in  evidence ;  a  re- 
turn of  nulla  bona  to  a  fieri  facias  upon  a  judgment 
against  a  surety  in  replevin  is,  however,  only  prima 
facie  evidence  of  his  insufficiency.2  The  sureties 
themselves  are  witness  as  to  their  sufficiency.3 
Evidence  of  general  reputation  as  to  their  want  of 
credit  in  the  neighborhood  of  their  respective  resi- 
dences,4 will  be  received  in  proof  of  their  insuffi- 
ciency, as  well  as  particular  acts  of  default.5     If 

1  Gibbs  v.  Bull,  18  Jobns.  435. 

2  Myers  v.  Clark,  3  W.  &  S.  535. 

3  Archbold  on  Land.  &  Ten.  250.     Myers  v.  Clark,  3  W. 
&  S.  535. 

*  Scott  v.  Waithman,  3  Stark  1G8.     See  Saunders  u.  Darling 
Bui.  X.  P.  60. 
5  Gwyllim  u.  Scholey,  G  Esp.  100. 


280      PROCEEDINGS   AGAINST    THE    SHERIFF,    ETC. 

the  plaintiff  have  taken  an  assignment  of  the 
bond,  it  must  be  produced  ;T  but  it  is  not  neces- 
sary to  prove  it,  proof  of  the  assignment  from  the 
sheriff  being  sufficient  as  against  him.2 

If  the  plaintiff  has  not  taken  an  assignment  of 
the  bond,  he  must  give  the  defendant  notice  to 
produce  it  at  the  trial ;  if  he  produce  it,  it  may  be 
put  in  evidence  without  proof.3  If  he  do  not,  then 
secondary  evidence  must  be  given  of  its  contents.4 

1  Jeffrey  v.  Bastard,  4  Ad.  &  El.  823. 

2  Barnes  v.  Lucas,  Ky.  &  M.  264. 

3  Scott  v.  Waithman,  3  Stark.  1G8. 

4  Archbold  PI.  &  Ev.  386,  387.  Arch,  on  Land;  &  Ten. 
250. 


CHAPTER  XYIII. 

OF  THE  CLAIM  PROPERTY  BOND. 

The  claim  property  bond  is  unknown  in  Eng- 
lish practice,  and  in  this  country  is  confined  to 
Pennsylvania  and  Delaware.  In  England,  a  claim 
of  property  on  the  part  of  the  defendant,  as  we 
have  seen,  puts  a  stop  to  the  proceedings,  until  a 
writ  de  proprietate  probanda  is  issued.1  That  writ 
is  not  in  use  in  Pennsylvania.  The  practice,  under 
the  act  of  1705,  has  created  what  may  be  called 
the  common  law  on  this  subject  in  that  state. 
Where  the  writ  of  replevin  issues,  the  defendant 
may  put  in  a  claim  of  property,  and  on  giving 
bond  to  the  sheriff  in  double  the  value  of  the  jroods 
to  answer  for  their  value  if  he  shall  not  succeed  in 
the  suit,  he  is  entitled  to  retain  the  goods.  The 
sheriff  will  return  this  fact  to  the  writ  of  replevin. 

It  is  the  duty  of  the  sheriff,  before  he  removes 
the  goods,  to  allow  the  defendant  reasonable  time 
to  obtain  security.  If  he  does  not,  he  cannot,  in 
an  action  of  trespass,  justify  under  the  writ  in 
replevin.2     The  obligation  entered  into  is  called  a 

1  See  ante,  p.  56. 

*  Hocker  v.  Striker,  1  Dall.  225.  Tearce  v.  Humphreys,  14 
S.  &  R.  23,  25. 


282     OF  THE  CLAIM  PROPERTY  BOND. 

claim  property  bond,  and  is  in  form  a  bond  to  the 
sheriff  in  double  the  value  of  the  goods  conditioned 
that  the  defendant  shall  establish  his  claim  of  pro- 
perty on  the  trial,  and  abide  by  the  judgment  of  the 
court  in  all  things  relating  to  the  premises,  and  to 
indemnify  the  sheriff.1  There  is  no  statute  pre- 
scribing the  form  of  this  bond;  it  will  not,  therefore, 
be  void,  if  it  contain  some  conditions  contrary  to 
law,  and  some  that  are  good  and  lawful ;  but  the 
conditions  which  are  against  law  will  be  void  ab 
initio,  while  the  others  will  stand  good.  Thus, 
where  a  claim  property  bond  contained  a  condition 
to  make  a  return  of  the  goods,  if  a  return  should  be 
awarded,  it  was  held  that,  although  this  condition 
was  erroneously  in  the  bond,  as  it  looked  to  a 
judgment  which  could  never  be  entered  for  the 
plaintiff  in  replevin,  to  wit,  the  judgment  of  re- 
torno  habendo,  yet  it  was  simply  void  as  being 
harmless  and  without  effect  f  and  that  the  plaintiff 
might  recover  on  the  bond  for  a  breach  of  the  con- 
ditions which  were  good.  A  warrant  to  confess 
judgment  is  inserted  in  the  bond  as  used  in  Phila- 
delphia, and  is  binding  on  the  obligors,3  and  then 

1  See  form  in  the  Appendix. 

2  Chaffee  v.  Sangston,  10  Watts  265.  Moore  v.  Shenk,  3 
Barr  13. 

3  Neville  v.  Williams,  1  Watts  421.  Shaw  v.  Tobias,  3  Comst. 
189.  Short  v.  Hubbard,  2  Bing.  348.  Gingell  v.  Turnbull, 
3  Bins:.  N.  C.  881. 


OF   THE   CLAIM   PROPERTY   BOND.  283 

in  cases  in  which  the  prothonotary  would  not  he 
competent  to  assess  the  damages,  a  scire  facias  or 
an  issue  might  be  necessary.  Giving  the  bond  has 
the  effect  of  vesting  the  property  in  the  defendant, 
and  he  cannot  tender  the  property  afterwards  in 
satisfaction  pro  tanto  of  the  damages  claimed.1 

The  bond  may  be  assigned  to  the  plaintiff  in  the 
replevin,  but  the  action  upon  it  must  be  brought 
in  the  name  of  the  sheriff  to  his  use.  The  omission 
to  set  out  in  the  declaration  the  proceedings  and 
judgment  in  the  replevin,  though  good  cause  for 
demurrer,  is  cured  by  verdict.2 

The  sureties  in  the  claim  property  bond  are 
liable  to  the  full  amount  of  the  penalty  of  their 
bond,  and  they  cannot  contest  the  judgment  against 
their  principal.3  In  Miller  v.  Foutz,4  the  court 
repudiate  the  idea  that  the  plaintiff  should  recover 
the  value  of  the  goods  only,  and  they  ask,  "  Sup- 
pose a  family  picture,  or  piece  of  plate,  or  (as  this 
case  turned  out  in  the  evidence  on  the  trial)  the 
produce  of  a  farm  for  one  whole  year,  unlawfully 

1  Taylor  v.  The  Royal  Saxon,  1  Wall,  Jr.  327.     Fisher  v. 
Whoollery,  1  Casey  198.     Moore  v.  Shenk,  3  IJarr  13. 

2  Chaffee  v.  Sangston,  10  Watts  265.    Eldred  v.  Benuett,  9 
Casey  183. 

3  Hicks  v.  M'Bride,  5  Phila.  377. 

4  Miller  v.  Foutz,  2  Yeates  418. 


284  OF    THE   CLAIM   PROPERTY   BOND. 

taken  and  detained  by  a  wrong-doer,  shall  the 
mere  value  of  the  property  be  the  sole  measure  of 
damages?"  This  reasoning  would  apply  equally 
well  to  the  sureties  in  the  replevin  bond.  There 
may  be  cases,  undoubtedly,  in  which  the  market  or 
money  value  of  an  article  could  not  be  considered 
as  an  equivalent  for  its  loss  to  the  owner,  and  this 
whether  he  be  deprived  of  it  by  writ  of  replevin,  or 
kept  out  of  it  by  the  claim  property  bond.  In  the 
former  case  we  have  seen  that  interest  upon  the 
value  of  the  article,  when  taken,  from  the  time  of 
taking,  is  the  regular  measure  of  damages,  where 
there  has  been  no  wanton,  vexatious,  oppressive,  or 
culpable  conduct,  and  that  the  defendant  is  not 
entitled  to  any  special  damages  he  has  sustained 
by  the  interruption  of  his  business,  caused  by  the 
replevin.1  It  is  difficult  to  discover  any  good 
reason  for  a  difference,  and  perhaps  Miller  v.  Foutz 
would  now  be  construed  as  propounding  the  same 
doctrine.2 

In  New  York,  under  the  revised  statutes,  a  pro- 
ceeding somewhat  analogous  to  the  writ  de  pro- 
prietate  probanda  prevailed.  There,  if  a  claim  of 
property  were  made  by  the  defendant,  or  any  other 
person  in  possession  of  the  goods,  and  the  fees  of 

1  M'Cabe  v.  Moorehead,  1  W.  &  S.  513.     Gibbs  v.  Bartlett, 
2  W.  &  S.  35. 
1  M'Donald  v.  Scaife,  1  Jones  385. 


OF    THE    CLAIM    PROPERTY    IiOXD.  285 

a  jury  for  trying  such  claim  were  paid  to  the 
sheriff,  he  was  required  to  take  the  goods  into  his 
possession,  and  detain  them  in  his  custody,  and, 
forthwith,  to  summon  a  jury  to  appear  before  him, 
at  such  time  and  place  as  he  might  specify,  which 
time  was  required  to  be  within  two  days  thereafter, 
to  try  the  validity  of  such  claim. 

The  new  Code  of  Procedure  has  superseded  this 
system,  and  introduced  a  proceeding  very  similar 
to  the  claim  property  bond  in  Pennsylvania.     The 
most  material  difference  being,  that  a  re-delivery 
to  the  plaintiff  is  stipulated  for  by  the  claimant, 
if  such  delivery  shall  be  adjudged  by  the  court. 
The  code  does  not  provide  for  any  change  in  the 
judgment  for  the  plaintiff;  which,  as  we  have  seen, 
was  at  common  law  for  the  value  of  the  property, 
and  not   a  judgment   of  retorno   habendo.     But 
under    the    revised    statutes,    the    plaintiff    was 
allowed,  in  addition  to  the  judgment  for  the  value 
of  the  chattels,  a  judgment  that  they  should  be 
delivered  to  him  without  delay,1  and  as  the  new 
code  only  touches  the  process,  it  is  to  be  presumed 
that   he  is   still   entitled  to  this  judgment.     The 
statutes  of  Arkansas  have   followed  the  revised 
statutes  of  New  York.     The  statute  law  of  the 

1  Rev.  Stat.  New  York,  Title  Replevin,  Sect.  4'.'. 
19 


286  OF   THE   CLAIM   PROPERTY   BOND. 

other  states  attaches  no  importance  to  the  claim 
of  property  by  the  defendant.  Such  claim  does 
not,  in  any  manner,  interfere  with  the  operation 
of  the  writ  of  replevin,  and  the  writ  de  proprie- 
tate  probanda  is  not  allowed.  The  affidavit  of 
property  and  right  of  possession,  exacted  from 
the  plaintiff  before  he  is  entitled  to  the  writ,  and 
his  bond  to  prosecute  with  effect,  are  looked  upon 
as  sufficient  protections  to  the  defendant. 

The  Pennsylvania  practice  has  some  features 
which  recommend  it  in  preference  to  any  other. 
And  this  seems  to  have  been  felt  by  the  authors 
of  the  new  code  in  New  York  who  have  adopted 
it,  with  an  alteration,  derived  from  their  revised 
statutes,  giving  the  plaintiff  the  benefit  of  a  judg- 
ment for  a  return  if  he  wishes  it,  which  is  in 
theory,  at  any  rate,  an  improvement.  The  Penn- 
sylvania practice  is  but  a  recognition  of  the 
familiar  maxim,  "  melior  est  conditio  possidentis." 
The  plaintiff  before  trial  is  but  a  claimant  of  the 
property.  If  the  defendant  assumes  the  same 
attitude  and  gives  security  to  establish  his  claim, 
it  is  but  in  accordance  with  general  principles  that 
he  should  retain  the  possession  during  the  pen- 
dency of  the  action.  In  England,  where  replevin 
was  used  chiefly  to  test  the  right  to  distrain,  and 
was  generally  held  not  to  apply  to  other  cases,  the 


OF    THE    CLAIM    PROPEKTY    BOND.  287 

property  was  regarded  as  prima  facie  belonging 
to  the  plaintiff;  and  that  he  might  not  be  debarred 
from  the  possession  of  his  property  pending  the 
action,  by  a  vexations  claim  of  property  on  the 
part  of  the  defendant,  the  writ  de  proprietate  pro- 
banda was  devised  to  try  this  preliminary  question 
at  once,  that,  if  the  property  was  the  plaintiffs, 
he  might  have  possession  of  it  pending  the  suit. 
In  this  country,  where  the  action  is  used  to  try 
the  right  of  property  and  possession  as  well  as  to 
test  the  right  to  distrain,  the  property  is  not 
prima  facie  in  the  plaintiff,  but  in  the  defendant, 
as  being  the  party  in  possession,  hence  the  pro- 
priety of  not  disturbing  his  possession,  where  he 
claims  property,  and  is  willing  to  give  security  to 
abide  the  judgment  of  the  court.  It  might  be  an 
improvement  in  the  Pennsylvania  practice  to 
adopt  the  Delaware  construction  of  the  law,  and 
allow  the  defendant  in  all  cases  to  take  judgment 
for  the  value  of  the  goods  as  well  as  a  retorno 
habendo.  And  to  extend  to  the  plaintiff,  where 
the  goods  have  not  been  delivered  to  him  in  the 
first  instance,  the  benefits  of  a  judgment  of  retorno 
habendo,  if  he  desires  it.  The  revised  statutes  of 
New  York  provided,  in  a  measure,  for  both  these 
changes ;  we  have  seen  that  they  gave  the  plain- 
tiff the  benefit  of  a  retorno  habendo,  or  order  i'm 
delivery,   which   was   equivalent   thereto.      They 


288     OF  THE  CLAIM  PEOPEETT  BOXD. 

also  authorized  the  defendant  when  he  was  entitled 
to  a  judgment  of  retorno  habendo,  except  in  cases 
where  the  property  replevied  had  been  distrained, 
to  take,  instead  thereof,  a  judgment  for  the  value 
of  the  property,  to  be  assessed  by  the  jury,  or  by 
writ  of  inquiry,  as  the  case  might  be.1 

1  Rev.  Stat.  New  York,  tit.  Replevin,  Sect.  55. 


APPENDIX. 


APPENDIX  I. 
iFovws  of  jjvocrss. 

Prcecipe. 

A.  B.    "|  In  District  Court, 

v.       }  Sept.  T.  1848. 

C.  D.    j  Value  $3000. 

Issue  writ  of  replevin  for  twenty  boxes  of  mer- 
chandise, marked  as  follows:  returnable  1st  Monday 
of  October,  1848. 
W.  E.  M. 
W.  B. 


S.        &c. 

<$> 

E.  F. 

To  Prothonotary, 

Atty.  for  Pl'ff. 

D.  C. 

Sept.  10,  1848, 

Writ  qfMeplt  /•///. 

City  and  County  of  Philadelphia,  ss. 

oira&^       The  Commonwealth  of  Pennsylvania,  to 
HfS&i$Btho  sheriff  of  Philadelphia   county,  greet- 

*Qn@  ing :  If  A.  B.  make  you  secure  of  prose- 


292  APPENDIX   I. 


cuting  his  claim  with  effect  against  C.  D.,  then  we 
command  you  that  the  said  A.  B.,  twenty  boxes  of 
merchandise,    marked,  &c,  to   be   replevied   and 
delivered,  you  cause,  and  that  you  put  by  sureties 
and  safe  pledges  the  said  C.  D.,  so  that  he  be  and 
appear  before  our  judges  at  Philadelphia,  at  our 
District  Court  for  the  City  and  County  of  Phila- 
delphia,  there   to   be   held   the   first   Monday   of 
next  to  answer  the  said  A.  B.  of  a  plea,  where- 
fore he  took  the  goods  and  chattels  aforesaid,  the 
property  of  the  said  A.  B.,  and  the  same  unjustly 
detains    against   sureties   and   safe    pledges,    &c. 
And  have  you  then  there  this  writ.     WITNESS 
the  Honorable  Thomas  M.  Pettit,  President  of 
our  said  Court  at  Philadelphia,  the         day  of 
in  the  year  of  our  Lord  one  thousand  eight  hun- 
dred and  forty- 

Prothonotary. 

N.B.   The  value  of  the  goods  is  indorsed  on 
the  writ. 


Writ  of  Homine  Beplegiando. 

Pennsylvania,  ss. 

j&fts       Tlie  Commonwealth  of  Pennsylvania  to 
f^|pthe  sheriff  of  Philadelphia  county,  greet- 

^mffi'  ing:  We  command  you  that  justly  and 


APPENDIX    I.  293 

without  delay  you  cause  to  be  replevied  William 
Wright,  otherwise  called  Ben.  Hall,  whom  Israel 
Deacon,  late  of  }rour  county,  took  and  taken 
doth  hold  as  it  is  said,  unless  the  aforesaid 
William  Wright,  otherwise  called  Ben.  Hall,  was 
taken  by  our  special  precept,  or  of  our  Chief 
Justice,  or  of  the  death  of  any  man,  or  of  any 
other  right  whereof,  according  to  the  laws  and 
usages  of  this  Commonwealth,  he  is  not  replevi- 
able  that  no  more  clamor  thereof  we  may  have 
for  defect  of  justice,  and  how  you  shall  execute 
this  our  writ  you  make  appear  to  our  justices  of 
our  Supreme  Court  at  our  Supreme  Court  to  be 
holden  at  Philadelphia,  in  and  for  our  Eastern 
District,  on  the  second  Monday  of  December 
next,  and  have  you  then  there  this  writ.  Witness 
the  Hon.  William  Tilghman,  Esquire,  Doctor  of 
Laws,  Chief  Justice  of  our  said  Supreme  Court, 
at  Philadelphia,  the  twenty-seventh  day  of  July, 
in  the  year  of  our  Lord  1818. 

Return.  John  Conrad,  Proth'y. 

Replevied,  Sept.  25th,  1818,  Summoned. 


Replevin  Bond  as  used  in  JVew  York. 

•  Know  all  men  by  these  presents,  that  we         are 
held  and  firmly  bound  unto  sheriff  of  the 


294  APPENDIX   I. 

in  the  sum  of  dollars,  lawful  money  of  the 

United  States,  to  be  paid  to  the  said  sheriff,  or  to 
his  assigns  :  For  which  payment  well  and  truly 
to  be  made,  we  bind  ourselves,  our  and  each  of 
our  heirs,  executors,  and  administrators,  jointly 
and  severally,  firmly  by  these  presents.  Sealed 
with  our  seals.  Dated  day  of  one  thou- 
sand eight  hundred  and 

The  condition  of  this  obligation  is  such,  That 
if  the  above  bounden  shall  prosecute  the  suit 
to  effect,  and  without  delay,  which  lia  com- 
menced in  the  against  the  defendant,  for 
unjustly  detaining  (name  the  goods)  and 
that  if  the  defendant  recover  judgment  against 
in  such  action,  will  return  the  same  prop- 
erty, if  return  thereof  be  adjudged,  and  will  pay 
to  the  defendant  all  such  sums  of  money  as  may 
be  recovered  against  by  such  defendant  in 
the  said  action,  for  any  cause  whatever,  then  the 
above  obligation  to  be  void. 

Sealed  and  delivered,  in  the  presence  of 
State  of  New  York,  City  and  County  of  New 
York,  ss.  of  the  said  city,  being  duly  sworn, 
says,  that  he  has  examined  and  appraised  the 
property  specified  in  the  above  bond ;  that  he  has 
no  interest  therein,  nor  in  the  suit  commenced 
therefor,  and  believes  the  same  to  be  of  the  value 
of 


APPENDIX   I.  295 

Sworn  before  me  and  examined,  this  dth  <1<hj  of 
March,  1848. 

Sheriff, 


Replevin  Bond  as  used  in  Pennsylvania  in  1849. 

Know  all  men  by  these  presents,  that  we  A.  B., 
C.  D.,  and  E.  F.,  are  held  and  firmly  bound  unto 
Henry  Lelar,  Esq.,  Sheriff  of  the  City  and  County 
of  Philadelphia,  in  the  just  and  full  sum  of 
lawful  money  of  Pennsylvania,  to  be  paid  to  the 
said  Henry  Lelar,  Esq.,  his  certain  attorney,  exe- 
cutors, administrators,  or  assigns :  to  which  pay- 
ment well  and  truly  to  be  made  and  done,  we  do 
bind  ourselves,  and  each  of  us,  our  heirs,  execu- 
tors and  administrators,  and  every  of  them,  jointly 
and  severally,  firmly  by  these  presents.  Sealed 
with  our  seals,  dated  this  day  of  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and 
forty- 

The  condition  of  this  obligation  is  such,  That 
whereas  the  above  bounden  A.  B.,  having  obtained 
a  certain  writ  of  replevin  issued  out  of  the 
tested  at  Philadelphia,  the  day  of  against 
a  certain  J.  K.,  of  the  county  aforesaid,  com- 
manding the  said  sheriff,  that  he  should  replevy, 


296  APPENDIX   I. 

and  cause  to  be  delivered  to  the  said  A.  B.  {enu- 
merate the  articles). 

Now  if  the  above  bounden  A.  B.  shall  and  will 
prosecute  his  suit  against  the  said  J.  K.  with  effect, 
and  shall  and  will  make  return  of  the  said  goods, 
if  return  of  the  same  shall  be  adjudged,  and  shall 
and  will,  also,  from  time  to  time,  and  at  all  times 
hereafter,  well  and  sufficiently  keep  and  save 
harmless  and  indemnified  the  above  named  sheriff 
and  his  officers,  and  his  or  their  heirs,  executors, 
and  administrators,  and  every  of  them,  of  and 
from  all  manner  of  suits,  action  and  actions,  costs 
or  charges  whatsoever,  that  shall  and  may  accrue 
to  him  or  them,  by  reason  of  the  replevy  and  de- 
livery aforesaid,  that  then  the  above  obligation  to 
be  void  and  of  none  effect,  otherwise  to  be  and 
remain  in  full  force  and  virtue;  and  we  hereby 
authorize  the  prothonotary  of  the  proper  court  to 
enter  judgment  hereon,  upon  the  recovery  of  judg- 
ment against  the  said  sheriff,  upon  any  of  the  fore- 
going accounts. 

Sealed  and  delivered  | 

in  the  presence  of  us,    j 

A.  B.     (seal.) 

C.  D.     (seal.) 

E.  F.     (seal.) 


APPENDIX   I.  -'•'. 

Reph.  vin  Bond  as  used  in  Philadelphia  in  1809. 

Know  all  men  by  these  presents,  that  we 
are  held  and  firmly  bound  unto  Peter  Lyle,  Esq., 
Sheriff  of  the  City  and  County  of  Philadelphia,  in 
the  just  and  full  sum  of  dollars,  lawful  money 
of  Pennsylvania,  to  be  paid  to  the  said  Peter  Lyle, 
Esq.,  his  certain  attorney,  executors,  administra- 
tors, or  assigns  ;  to  which  payment  well  and  truly 
to  be  made  and  done,  we  do  bind  ourselves,  and 
each  of  us,  our  heirs,  executors,  and  administra- 
tors, and  every  of  them,  jointly  and  severally, 
firmly  by  these  presents.  Sealed  with  our  seals, 
dated  this  day  of  in  the  year  of  our  Lord 
one  thousand  eight  hundred  and 

The  condition  of  this  obligation  is  such,  That 
whereas,  the  above  bounden  having  obtained  a 
certain  AVrit  of  Replevin,  issued  out  of  the  for 
the  City  and  County  of  Philadelphia,  as  of 
Term,  18  Xo.  tested  at  Philadelphia,  the 
day   of        18  against  of  the    county 

aforesaid,  commanding  the  said  sheriff,  that  he 
should  replevy,  and  cause  to  be  delivered  to  the 
said  plaintiff  (enumerate  tht  articles).  Xow  if  the 
above  bounden  plaintiff  shall  and  will  prosecul  • 
suit  against  the  said  defendant  with  effect, 
and  shall  and  will  make  return  of  the   said  goods. 


298  APPENDIX   I. 

if  return  of  the  same  shall  be  adjudged,  and  if  the 
said  obligors  shall  and  will,  also,  from  time  to  time, 
and  at  all  times  hereafter,  well  and  sufficiently  keep 
and  save  harmless  and  indemnified  the  above  named 
sheriff  and  his  officers,  and  his  or  their  heirs,  exe- 
cutors and  administrators,  and  every  of  them,  of 
and  from  all  manner  of  suits,  action  and  actions, 
costs  or  charges  whatsoever,  that  shall  and  may 
accrue  to  him  or  them,  by  reason  of  the  replevy 
and  delivery  aforesaid,  that  then  the  above  obliga- 
tion to  be  void  and  of  none  effect,  otherwise  to  be 
and  remain  in  full  force  and  virtue ;  and  we  hereby 
authorize  the  prothonotary  of  the  proper  court,  to 
enter  judgment  hereon  for  the  above  mentioned 
sum  of  dollars. 
Sealed  and  delivered  ) 

in  the  presence  of  us,     J 

(seal.) 

(seal.) 

(seal.) 

(seal.) 


Form  of  Claim  Property  Bond  used  in  Philadelphia 

in  1869. 

Know  all  men  by  these  presents,  that  we 
are  held  and  firmly  bound  unto  Peter  Lyle,  Esq., 
Sheriff  of  the  City  and  County  of  Philadelphia, 


APPENDIX   I.  299 

in  the  just  and  full    sum   of  dollars,  lawful 

money  of  Pennsylvania,  to  be  paid  to  the  said 
Peter  Lyle,  Esq.,  his  certain  attorney,  executors 
administrators,  or  assigns  ;  to  which  payment  will 
and  truly  to  be  made  and  done,  we  do  bind  our- 
selves, and  each  of  us,  our  heirs,  executors,  and 
administrators,  and  every  of  them,  jointly  and 
severally,  firmly  by  these  presents;  Sealed  with 
our  seals,  dated  this  day  of  in  the  year  of 
our  Lord  one  thousand  eight  hundred  and 

The  condition  of  this  obligation  is  such,  That 
Avhereas,  having  obtained  a  certain  "Writ  of 
Replevin,  issued  out  of  the  for  the  City  and 
County  of  Philadelphia,   No.  Term,  18 

tested  at  Philadelphia,  the         day  of  against 

of  the  county  aforesaid,  commanding  the  said 
sheriff,  that  he  should  replevy,  and  cause  to  be 
delivered  to  the  said  plaintiff 

And  wThereas,  The  said  defendant  ha 
claimed  property  in  the  said  goods  and  chattels, 
whereof  delivery  of  the  same  cannot  be  made  to 
the  said  plaintiff  .  Xow  if  the  above  bounden 
defendant  shall  and  do  well  and  truly  deliver 
up  the  said  goods  and  chattels  to  the  said  plaintiff 
if  the  property  thereof  shall  be  adjudged  in 
the  said  plaintiff,  and  shall  and  do  well  and 
truly  abide  by  the  judgment  of  the  said  court  in 
all  things  relating  to  the  premises,  and  if  the  said 


300  APPENDIX   I. 

obligors  shall  also  save  and  keep  harmless,  and 
indemnify  the  said  sheriff  in  the  premises,  then 
this  obligation  to  be  void  and  of  none  effect,  other- 
wise to  be  and  remain  in  full  force  and  virtue, 
and  the  said  obligors  hereby  authorize  the  pro- 
thonotary  of  the  proper  court  to  enter  judgment 
hereon  for  the  above  mentioned  sum  of  dollars. 
Sealed  and  delivered  ) 

in  the  presence  of  us,    J 

(seal.) 

(seal.) 

(seal.) 

(seal.) 

Claim  Property  Bond  as  used  in  the  county  of 
Philadelphia  in  1849. 

Know  all  men  by  these  presents,  that  we,  A.  B., 
C  D.,  and  E.  F.,  are  held  and  firmly  bound  unto 
Henry  Lelar,  Esq.,  Sheriff  of  the  city  and  county 
of  Philadelphia,  in  the  just  and  full  sum  of 
lawful  money  of  Pennsylvania,  to  be  paid  to  the 
said  Henry  Lelar,  Esq.,  his  certain  attorney,  execu- 
tors, administrators  or  assigns  :  to  which  payment 
well  and  truly  to  be  made  and  done,  we  do  bind 
ourselves,  and  each  of  us,  our  heirs,  executors  and 
administrators,  and  every  of  them,  jointly  and 
severally  firmly  by  these  presents.    Sealed  with  our 


APPEXDIX    I.  301 

seals,  dated  this         day  of        in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  forty- 

The  condition  of  this  obligation  is  such,  That 
whereas,  J.  K.  having  obtained  a  certain  writ  of 
replevin,  issued  out  of  the  tested  at  Philadel- 
phia, the  day  of  agai  nst  the  above  bounden 
A.  B.  of  the  county  aforesaid,  commanding  the 
said  sheriff,  that  he  should  replevy,  and  cause  to 
be  delivered  to  the  said  J.  K.  (certain  articles, 
enumerating  them). 

And  whereas  the  said  A.  B.  hath  claimed  pro- 
perty in  the  said  (goods  and  chattels)  wherefore 
delivery  of  the  said  (goods  and  chattels)  cannot  be 
made.  Now  if  the  above  bounden  A.  B.  shall  and 
do  well  and  truly  deliver  up  the  said  (goods  and 
chattels)  to  the  said  J.  K.,  if  the  properly  thereof 
shall  be  adjudged  in  the  said  J.  K.,  and  shall  do 
and  well  and  truly  abide  by  the  judgment  of  the 
said  court  in  all  things  relating  to  the  premises, 
and  shall  also  save  and  keep  harmless,  and  indem- 
nify the  said  sheriff  in  the  premises,  then  this  ob- 
ligation to  be  void  and  of  none  effect,  otherwise  to 
be  and  remain  in  full  force  and  virtue. 

Sealed  and  delivered  ] 
in  the  presence  of  us.     j  A.  B.     (seal.) 

C.  D.     (seal.) 
E.  F.     (seal.) 

20 


302  APPENDIX    I. 

Writ  of  Retorno  Habendo. 

Philadelphia,  ss. 

The  Commonwealth  of  Pennsylvania  to  the  She- 
riff of  the  said  County,  greeting :  Whereas  A.  B., 
lately  in  our  District  Court  at  Philadelphia,  was 
summoned  to  answer  E.  F.  of  a  plea  wherefore  he 
took  three  horses,  of  the  value  of  three  hundred 
dollars,  lawful  money,  &c,  of  the  goods  and  chat- 
tels of  him  the  said  E.  F.,  and  the  same  unjustly 
detained  against  sureties  and  pledges,  &c,  as  he 
alleged,  and  the  said  E.  F.  afterwards  made  default 
in  our  said  court,  before  our  judges  at  Philadel- 
phia:  Wherefore,  it   is    considered  in  our   same 
court,  before   our  said  judges,  that  he  and  his 
pledges  for  prosecuting  should  be  amerced,  and 
that  the  said  A.  B.  might  depart  the  court  without 
day,  and  should  have  return  of  the  horses  aforesaid. 
Therefore  we  command  you,  that,  without  delay, 
you  return  the  said  three  horses  to  the  said  A.  B., 
and  you  shall  not  deliver  the  said  horses  at  the 
complaint  of  the  said  E.  F.,  without  our  writ,  which 
shall  expressly  mention  the  said  judgment.     And 
in  what  manner  you  shall  execute  this  writ,  make 
known  to  our  judges  at  Philadelphia,  at  our  Dis- 
trict Court  there  to  be  held  for  the  said  city  and 
county  of  Philadelphia,  the  first  Monday  of 


APPENDIX   I.  303 

next.     And  have  you  then  there  this  writ.     Wit- 
ness, &c. 


Notice  of  claim  of  Property. 

To  H.  L.,  Sheriff  of  the  City  and  County  of 
Philadelphia.  Sir, — I  hereby  claim  property  in 
the  goods  and  chattels  (or  beasts,  or  if  a  part  only 
be  claimed,  state  the  part  particularly)  sought  to 
be  replevied  by  A.  B.  on  a  writ  of  replevin,  issued 
out  of  the  District  Court  for  the  city  and  county 
of  Philadelphia,  of  March  Term,  1849,  No.  against 
C.  D.,  and  to  you  directed.  And  I  offer  M.  N., 
No.  Walnut  Street,  and  O.  P.,  No.  Yine 
Street,  as  sureties  in  the  bond. 

Dated,  &c.  Signed  by  claimant. 


APPENDIX  II. 
jFotms  of  Dlea&ing* 

Declaration  in  the  detinuit  when  the  sheriff  returns 
summoned,  replevied,  and  delivered. 

In  the  District  Court  for  the  City  and  County 
of  Philadelphia. 

Philadelphia,  ss. 

A.  B.  was  summoned  to  answer  C.  D.  of  a  plea 
wherefore  he  took  the  goods  and  chattels  of  the 
said  C.  D.  and  unjustly  detained  the  same  against 
sureties  and  pledges,  &c,  and  thereupon  the  plain- 
tiff, by  E.  F.  his  attorney,  complains  for  that  the 
defendant  on  the  day  of  at  in  the  county 
aforesaid,  in  a  certain  dwelling-house,  No.  Wal- 
nut street  (or  farm,  or  store-house,  as  the  case  may 
be),  took  the  goods  and  chattels,  to  wit  (here  enu- 
merate the  articles  as  in  the  writ),  of  him  the 
plaintiff  of  great  value,  to  wit,  of  the*  value  of  , 
and  unjustly  detained  the  same  against  sureties 
and  pledges,  until,  &c. ;  to  the  damage  of  the 
plaintiff  of     ;  and  thereupon  he  brings  his  suit,  &c. 


APPFADIX     II.  305 

Declaration  in  the  detinet  when  the  sheriff  returns 

eloigned,  or  that  a  claim  property  bond  has  teen 

1  nken. 

In  the  District  Court  for  the  city  and  county 
of  Philadelphia. 

Philadelphia,  ss. 

A.  B.  was  summoned  to  answer  C.  D.  of  a  plea 
wherefore  he  took  the  goods  and  chattels  of  the 
said  C.  D.  and  unjustly  detained  the  same  againsl 
sureties  and  pledges,  and  thereupon  the  plaintiff, 
by  E.  F.  his  attorney,  complains  for  that  the  de- 
fendant on  the  day  of  at  in  the  county 
aforesaid,  in  a  certain  dwelling-house,  'No.  Wal- 
nut Street  (or  farm,  or  storehouse,  as  the  case  may 
be),  took  the  goods  and  chattels,  to  wit  (here  enu- 
merate the  articles  as  in  the  writ),  of  him  the 
plaintiff,  of  great  value,  to  wit,  of  the  value  of  , 
and  unjustly  detains  the  same  against  sureties  and 
pledges,  to  the  damage  of  the  plaintiff  of  ; 

and  therefore  he  brings  his  suit. 


306  APPENDIX   II. 

Declaration  in  the  detinuit  and  detinet,  where  the 
sheriff  returns  replevied  and  delivered,  as  to  some 
of  the  goods,  eloigned  as  to  others. 

In  the  District  Court  for  the  city  and  county 
of  Philadelphia. 

Philadelphia,  ss. 

A.  B.  was  summoned  to  answer  C.  D.  of  a  plea 
wherefore  he  took  the  goods  and  chattels  of  the 
said  C.  D.  and  unjustly  detained  the  same  against 
sureties  and  pledges,  and  thereupon  the  plaintiif, 
by  E.  P.  his  attorney,  complains  for  that  the  de- 
fendant on  the  day  of  at  in  the  county 
aforesaid,  in  a  certain  dwelling-house,  No. 
Walnut  street  (or  farm,  or  store-house,  as  the  case 
may  be),  took  the  goods  and  chattels,  to  wit 
(stating  the  goods  as  enumerated  in  the  writ),  of 
him  the  plaintiff  of  great  value,  to  wit,  of  the  value 
of  $  ,  and  parcel  thereof,  to  wit,  one  hundred 
barrels  of  flour,  unjustly  detained  against  sureties 
and  pledges,  &c,  until,  &c,  and  the  residue  or 
remainder  thereof  still  doth  detain  against  sureties 
and  pledges.  Wherefore  he,  the  said  C.  D.,  saith 
he  is  injured,  and  hath  damage  to  the  value  of 
$         and  therefore  he  brings  suit,  &c. 


APPENDIX    IT.  307 

Plea,  non  cepit 

In  the  District  Court  for  the  city  and  county 
of  Philadelphia. 

Philadelphia,  ss. 

And  the  said  defendant,  by  E.  F.  his  attorney, 
comes,  &c,  and  says  that  he  did  not  take  the  said 
goods  and  chattels,  in  the  said  declaration  men- 
tioned, or  any  or  either  of  them,  or  any  part  there- 
of, in  manner  and  form  as  the  plaintiff  has  above 
thereof  complained  against  him;  and  of  this  the 
defendant  puts  himself  on  the  country,  etc. 


Plea,  cepit  in  alio  loco. 

And  the  said  defendant,  by  E.  F.  his  attorney, 
comes,  etc.,  and  says  that  he  took  the  said  cattle, 
in  the  said  declaration  mentioned,  in  a  certain  close 
(dwelling-house,  store,  as  the  case  may  be),  called 
,  in  the  county  aforesaid,  without  this,  that  he 
took  the  said  cattle,  or  any  or  either  of  them,  in 
the  said  place  called  the  ,  in  the  county  afore- 
said, as  the  plaintiff  has  in  his  said  declaration  in 
that  behalf  alleged:  and  this  the  defendant  is  ready 
to  verify,  etc.     And  for  having  a  return  of  the  said 


308  APPENDIX    II. 

cattle,  the  defendant  well  avows  the  taking  of  the 
said  cattle,  in  the  said  declaration  mentioned,  in 
the  said  close  called         ,  and  justly,  etc.,  because 
he  says  that  before  the  said  time  when,  etc.,  and  at 
the  time  of  making  the  demise  hereinafter  men- 
tioned, one  C.  D.  was  seized  of,  and  in  the  said 
close  called         ,  in  which,  etc.,  with  the  appurte- 
nances in  his  demesne  as  of  fee :  and  being  so  seized, 
he,  the  said  C.  D.,  before  the  said  time,  etc.,  to  wit, 
on         demised  the  said  close  called         ,  in  which, 
etc.,  with  the  appurtenances  to  the  defendant  to 
have  and  to  hold  the  "same  to  the  defendant,  for  the 
term  of        years  thence  next  ensuing,  and  fully 
to  be  complete  and  ended :  by  virtue  of  which  said 
demise,  he,  the  defendant,  afterwards  and  before 
the  said  time  when,  etc.,  to  wit,  on  the  day  and 
year   last   aforesaid,   entered   into   the  said  close 
called  the         ,  in  which,  etc.,  with  the  appurte- 
nances, and  became,  until  and  at  the  said  time 
when,  etc.  was  lawfully  possessed  thereof:  and  be- 
cause the  said  cattle  in  the  said  declaration  men- 
tioned at  the  same  time  when,  etc.,  were  wrongfully 
and  injuriously  in  the  said  close  called         ,  and 
treading  down  and  depasturing  the  grass  and  herb- 
age then  and  there  growing,  and  doing  damage 
there  to  him  the  defendant,  he,  the  defendant,  well 
avows  the  taking  of  the  said  cattle  in  the  said  close 
called         ,  and  justly  and  as  for  and  in  the  name 


APPENDIX   II.  309 

of  a  distress,  for  the  said  damage  so  there  done  and 
doing  as  aforesaid. 


Pha  admitting  defendant  had  the  <•< title  in  the  locus 
in  quo,  but  toolc  them  damage  feasant  in  another. 

And  the  said  defendant,  by  E.  F.  his  attorney, 
comes  and  defends  the  wrong  and  injury  when,  etc., 
and  well  avows  the  taking  and  having  the  said 
(mare)  in  the  said  piece  or  parcel  of  land  called 
,  as  in  the  said  declaration  mentioned,  and 
justly,  etc.,  because  he  says  that,  etc.  (Here  state 
a  seizin  in  fee  of  another  close,  and  a  demise  there- 
of to  the  defendant  and  his  entry,  and  the  distress 
damage  feasant,  as  in  the  last  form,  to  the  end,  and 
then  proceed  as  follows.)  And  the  said  defendant 
afterwards,  and  immediately  before  the  said  time 
when,  etc.,  took  and  led  the  said  mare  from  the 
said  close,  piece,  or  parcel  of  ground  so  demised 
to  him  as  aforesaid,  to  the  said  place  in  the  said 
declaration  mentioned,  called  the  ,  in  which, 
etc.,  and  at  the  said  time  when,  etc.,  had  the  same 
there  in  the  way  from  the  said  close,  piece,  or  par- 
eel  of  ground,  so  demised  as  aforesaid,  to  a  certain 
pound  at  ,  in  the  county  aforesaid,  there  to  be 
impounded  for  the  damage  so  done  in  the  said  close, 


310  APPENDIX   II. 

piece,  or  parcel  of  ground,  so  demised  as  aforesaid ; 
and  this  etc.  (conclude  witft  verification). 


Plea,  'property  in  another. 

And  for  a  further  plea  in  this  behalf,  with  the 
leave  of  the  court  first  had  and  obtained,  the  de- 
fendant says  that  the  property  of  the  said  goods 
and  chattels  in  the  said  declaration  mentioned,  at 
the  said  time  when,  etc.,  was  in  him  the  defendant 
(or  in  one  A.  B.,  as  the  case  may  be),  without  this 
that  the  property  of  the  said  goods  and  chattels,  or 
any  part  thereof,  at  the  said  time  when,  etc.,  was 
in  the  said  plaintiff  as  by  the  said  declaration  is 
above  supposed,  and  this  the  defendant  is  ready  to 
verify ;  wherefore  he  prays  judgment,  etc. 


Plea,  statute  of  limitations. 

And  for  a  further  plea  in  this  behalf,  the  de- 
fendant says  that  he  did  not  take  or  detain  the 
said  goods  and  chattels  in  the  said  declaration 
mentioned,  or  any  of  them,  or  any  part  thereof,  in 
manner  and  form  as  the  plaintiff  has  above  thereof 


APPENDIX   II.  311 

complained  against  him,  at  any  time  within  six 
years  before  the  commencement  of  this  suit ;  and 
this  he  the  said  defendant  is  ready  to  verify. 


Replication  to  the  above. 

And  the  plaintiff,  as  to  the  said  plea  of  the  de- 
fendant by  him  above  pleaded  says,  that  the  de- 
fendant did  take  and  detain  the  said  goods  and 
chattels,  in  the  said  declaration  mentioned,  in 
manner  and  form  as  he  the  plaintiff  has  above 
thereof  complained  against  him,  within  six  years 
before  the  commencement  of  this  suit,  and  this  he 
the  said  plaintiff  prays  may  be  inquired  of  by  the 
country,  etc. 


Axowry  or  Cognizance  for  rent. 

The  defendant,  by  E.  F.  his  attorney,  well  avows 
(or  in  a  cognizance  as  bailiff  of  R.  S.,  well  acknow- 
ledges) the  taking  of  the  said  goods  and  chattels 
in  the  said  declaration  mentioned,  in  the  said 
dwelling-house  in  which,  etc.,  and  justly,  etc.,  be- 
cause he  says,  that  the  plaintiff  (or  one  J.  K.)  for 


312  APPENDIX    II. 

a  long  time,  to  wit,  for  the  space  of  years,  next 
before  and  ending  on  and  from  thence  until 
and  at  the  time  when,  etc.,  held  and  enjoyed  the 
said  dwelling-house  in  which,  etc.,  with  the  ap- 
purtenances, as  tenant  thereof  to  the  said  defend- 
ant (or  G.  H.,)  by  virtue  of  a  certain  demise  there- 
of to  him  the  said  plaintiff,1  (or,  the  said  J.  K.) 
theretofore  made  at  and  under  a  certain  yearly  rent 
of  payable  quarterly  on  (state  the  days  of  pay- 
ment), in  every  year,  by  even  and  equal  portions  ; 
and  because  the  sum  of  of  the  rent  aforesaid, 
for  the  said  space  of  ending  as  aforesaid  on  the 
said  day  of  in  the  year  aforesaid,  and  from 
thence  until,  and  at  the  same  time  when,  etc.,  was 
due  and  in  arrear  from  the  plaintiff  to  the  defend- 
ant (or  G.  H.  in  a  cognizance),  he  the  defendant 
well  avows  (or  if  a  cognizance,  "  as  bailiff  of  the 
said  G.  H.,  well  acknowledges")  the  taking  of  the 
said  goods  and  chattels,  in  the  said  dwelling-house 
in  which,  etc.,  and  justly,  etc.,  as  for  and  in  the 
name  of  a  distress  for  the  said  rent,  so  due  and  in 
arrear  to  the  defendant  (or  G.  P.  as  aforesaid)  ; 
which  said  rent  still  remains  in  arrear  and  unpaid; 
and  this  the  defendant  is  ready  to  verify ;  where- 
fore he  prays  judgment,  and  a  return  of  the  said 

1  If  it  be  doubtful  to  whom  the  original  letting  was,  the 
words  "  to  him  the  said  plaintiff,"  should  be  omitted. 


APPENDIX    II.    .  313 

goods  and  chattels,  together  with  his  damages, 
according  to  the  form  of  the  statute  in  such  case 
made  and  provided  to  be  adjudged  to  him,  etc. 


Suggestion  in  nature  of  an  avowry  on  a  judgment 
against  the  Plaintiff 'by  defaultf&r  want  of  a  Of  da  ra- 
tion. 

A.        1  In  District  Court, 
v.         \  June  Term,  18(39. 

B.  &C.    j  X... 

"Whereas,  a  judgment  by  default  for  want  of  a 
declaration  has  been  entered  against  the  said 
plaintiff.  It  is  suggested  that  the  defendant  C, 
or  bailiff  of  the  defendant  B.,  distrained  the  goods 
and  chattels  in  question  for  rent  due,  and  in  arrear 
by  the  plaintiff  to  the  defendant  B.  for  certain 
premises  demised  by  the  said  B.  to  the  plaint  ill', 
and  by  the  plaintiff  enjoyed  under  the  said  demise 
at  a  certain  rent,  to  wit,  at  a  rent  of  $  per 
annum,  the  said  premises  being  ]No.  Street, 

which  rent  was  payable  quarterly  (or  as  the 
case  may  be),  to  wit,  on  the  and  at  the  time 

of  the  said  distress,  there  was  due  of  the  said  rent, 
one  quarter's  rent  (or  as  the  case  may  be),  to  wit, 
that  which  came  due  on  the         day  of        A.  D. 


314  APPENDIX    II. 

18  ,  being  $  ,  and  that  which  came  due  on  the 
day  of  A.  D.  18  being  also  $  ,  together 
$  due  and  unpaid,  and  the  same  still  remains 
due  to  the  said  B.  and  unpaid,  and  to  recover 
which  he  caused  the  said  distress  to  be  made  as 
aforesaid,  and  he  prays  the  court  to  award  a  writ 
of  inquiry  of  damages  to  assess  his  damages  by 
reason  of  the  premises. 


Plea  in  har.     Traverse  of  the  demise. 

And  the  plaintiff,  as  to  the  (avowry  or  cogni- 
zance) of  the  defendant,  says,  that  the  defendant, 
by  reason  of  anything  by  him  in  his  said  (avowry 
or  cognizance)  above  alleged,  ought  not  to  avow 
(or,  as  bailiff  of  the  said  G.  H.  acknowledge)  the 
taking  of  the  said  (goods,  etc.),  in  the  place  in 
which,  etc.,  and  justly,  etc.;  because,  he  says,  that 
the  plaintiff  (or  E.  F.)  did  not  hold  or  enjoy  the 
said  dwelling-house  in  which,  etc.,  with  the  appur- 
tenances, as  tenant  thereof  to  the  defendant  (or 
the  said  G.  H.),  under  the  said  supposed  demise 
thereof  in  the  said  avowry  or  cognizance  mentioned, 
in  manner  and  form  as  the  defendant  has  above  in 
his  said  avowry  (or  cognizance)  in  that  behalf 
alleged ;  and  this  he,  the  plaintiff,  prays  may  be 
inquired  of  by  the  country. 


AlMMvSDIX    ir.  315 

Plea  in  bar,  no  rent  in  arrear. 

Commencement  as  above.  Because  he  says,  that 
no  part  of  the  said  supposed  rent,  in  the  said 
avowry  (or  cognizance)  mentioned,  was  or  is  in 
arrear  from  the  plaintiff  to  the  defendant  (or  G. 
II.),  in  manner  and  form  as  the  defendant  has  in 
avowry  (or  cognizance)  in  that  behalf  alleged;  and 
this  the  plaintiff  prays  may  be  inquired  of  by  the 
country,  etc. 


Plea,  eviction. 

Commencement  as  before.  Because  he  says,  that 
the  defendant,  after  the  making  of  the  said  demise 
in  the  said  avowry  mentioned,  and  before  any  part 
of  the  said  rent  therein  mentioned  became  due  or 
in  arrear,  to  wit,  on  ,  with  force  and  arms,  etc., 
entered  into  a  certain  messuage  or  dwelling-house, 
parcel  of  the  said  demised  premises,  in  the  said 
avowry  alleged  to  have  been,  demised,  in  and  upon 
the  possession  of  him  the  plaintiff  thereof,  and  him, 
the  said  plaintiff,  from  his  possession  thereof, 
ejected,  expelled,  put  out,  and  amoved,  and  kept 
and  continued  the  plaintiff  so  ejected,  expelled,  put 


316  APPENDIX   II. 

out  and  amoved  from  his  possession  thereof,  from 
thence,  until,  and  upon  and  after  the  said  day 
of  ,  A.  D.  1848 ;  and  this  the  plaintiff  is  ready 
to  verify;  wherefore,  inasmuch  as  the  said  defen- 
dant has  above  acknowledged  the  taking  of  the 
said  (cattle,  etc.),  in  the  said  place  in  which,  etc., 
he,  the  plaintiff,  prays  judgment  and  his  damages, 
by  reason  of  the  taking  and  unjustly  detaining 
the  same,  to  be  adjudged  to  him,  etc. 


Plea  by  a  lodger  in  a  tavern  or  boarding -house,  whose 
goods  have  been  distrained/or  rent  due  by  the  tenant. 

Commencement  as  before.  Because,  he  says,  that 
at  the  said  time  when,  etc.,  he,  the  said  plaintiff, 
was  a  boarder  with  O.  P.  (the  tenant)  at  the  said 
place  in  which,  etc.,  and  had  been  such  boarder  for 
a  long  time  before,  to  wit,  for  the  space  of  six 
months,  and  that,  as  such  boarder,  he  had  the  said 
goods  and  chattels  in  the  said  place  in  which,  etc., 
and  that  during  all  the  said  time,  and  at  the  said 
time  when,  etc.,  the  said  O.  P.,  in  the  said  place 
in  which,  etc.,  kept  a  boarding-house;  and  this 
the  plaintiff  is  ready  to  verify. 


APPENDIX    II.  317 

Avowry,  damage  feasa nt. 

The  defendant,  by  A.  B.  his  attorney,  well  avows 
(or  in  a  cognizance,  as  bailiff  of  G.  II.  well  acknow- 
ledges) the  taking  of  the  said  goods  and  chattels 
in  the  said  declaration  mentioned,  in  the  said  (close) 
in  which,  etc.,  and  justly,  etc. ;  because  he  says, 
that  the  said  place,  in  which,  etc.,  now  is,  and  at 
the  same  time  when,  etc.,  was  the  close,  soil,  and 
freehold  of  him  the  defendant,  and  because  the  said 
cattle  at  the  said  time  when,  etc.,  were  in  the  said 
place  in  which,  etc.,  eating  up  the  grass  there  then 
growing,  and  doing  damage  there  to  the  defendant, 
he  the  defendant  well  avows  the  taking  of  the  said 
cattle  in  the  said  place,  in  which,  etc.,  and  justly, 
etc.,  as  for  and  in  the  name  of  a  distress  for  the 
said  damage  so  there  done  and  doing  as  aforesaid; 
and  this  the  defendant  is  ready  to  verify ;  where- 
fore, he  prays  judgment  and  a  return  of  the  said 
goods  and  chattels,  together  with  the  damages, 
according  to  the  form  of  the  statute  in  such  case 
made  and  provided,  to  be  adjudged  to  him,  etc. 


Plea  in  bar,  tender  of  amends  before  impounding. 

And  the  plaintiff  as  to  the  (avowry  or  cogni- 
zance) of  the  defendant,  says,  that  the  defendant, 
21 


318  APPENDIX   II. 

by  reason  of  any  thing  by  him  in  his  said  (avowry 
or  cognizance)  above  alleged,  ought  not  to  avow 
(or  as  bailiff  of  the  said  G.  H.  acknowledge)  the 
taking  of  the  said  (cattle,  etc.)  in  the  place  in 
which,  etc.,  and  justly,  etc.     Because  he  says  that 
after  the  taking  of  the  said  cattle  in  the  said  place 
in  which,  etc.,  by  the  defendant,  and  before  the 
impounding  of  the  same,  to  wit,  on  the  same  day 
and  year  in  the  said  declaration  mentioned,  he,  the 
plaintiff,  tendered  and  offered  to  pay  to  the  defend- 
ant a  certain  sum  of  money,  to  wit,  the  sum  of 
$         ,  as  amends  for  the  said  damage  done  to  him, 
the  defendant,  by  the  said  cattle  in  the  said  place 
in  which,  etc.,  as  aforesaid,  and  which  was  then 
sufficient  amends  for  the  same,  which  said  sum  of 
$         the  defendant  then  wholly  refused  to  accept 
from  the  plaintiff,  and  unjustly  detained  the  said 
cattle  against  sureties  and  pledges,  etc.,  until,  etc., 
in  manner  and  form  as  the  plaintiff  hath  above 
thereof  complained  against  him  the  defendant :  and 
this  he,  the  defendant,  is  ready  to  verify.     "Where- 
fore, inasmuch  as  the  said  defendant  has  above 
acknowledged  the  taking  of  the  said  (cattle)  in 
the   said   place   in   which,  etc.,  he,  the  plaintiff, 
prays  judgment  and  his  damages,  by  reason  of  the 
taking   and   unjustly  detaining  the  same,  to  be 
adjudged  to  him,  etc. 


ArPEXDix  ii.  319 

Plea  in  bar,  denial  of  title. 

(Commencement  as  above.)  Because  he  says 
that  the  said  place  in  which,  etc.,  now  is,  and  at 
the  said  time  when,  etc.,  was  the  close,  soil,  and 
freehold  of  him  the  plaintiff,  and  not  the  close,  soil, 
and  freehold  of  him  the  defendant  (or  G.  II.),  in 
manner  and  form  as  the  defendant  hath  above  in  his 
said  avowry  (or  cognizance)  in  that  behalf  alleged: 
and  this  he,  the  plaintiff,  prays  may  be  inquired  of 
by  the  country,  etc. 


Plea  that  the  cattle  escaped  through  defect  offences, 

(Commencement  as  above.)  Because  he  says 
that  the  plaintiff,  before  and  at  the  said  time  when, 
etc.,  was  lawfully  possessed  of,  and  in  a  certain 
close  with  the  appurtenances,  situate,  lying,  and 
being  in  the  county  aforesaid,  and  contiguous  and 
next  adjoining  to  the  said  close  of  the  defendant, 
in  which,  etc.,  and  that  the  defendant  and  all  others, 
the  tenants  and  occupiers  of  the  said  close  in 
which,  etc.,  for  the  time  being,  from  time  whereof 
the  memory  of  man  is  not  to  the  contrary,  have 
repaired  and  amended,  and  have  used  and  been 
accustomed  to  repair   and  amend,  and   of  right 


320  APPENDIX   II. 

ought  to  have  repaired  and  amended,  and  the 
plaintiff  before  and  at  the  said  several  times  when, 
etc.,  of  right  ought  to  have  repaired  and  amended, 
and  still  of  right  ought  to  repair  and  amend  the 
fence  between  the  said  close  of  him  the  plaintiff, 
and  the  said  close  in  which,  etc.,  where  and  as 
often  as  occasion  hath  required,  and  shall  and  may 
require  to  prevent  cattle  lawfully  feeding  and  de- 
pasturing, or  being  in  the  said  close  of  the  plain- 
tin0,  from  erring  and  escaping  thereout  through  the 
defects  and  insufficiency  of  the  said  fence,  into  the 
said  close  in  which,  etc.,  and  doing  damage  there ; 
and  the  plaintiff  further  says,  that  the  said  fence, 
before  and  at  the  said  several  times  when,  etc., 
was  ruinous,  prostrate,  fallen  down,  and  in  great 
decay,  for  want  of  needful  and  necessary  making, 
repairing,  and  amending  thereof;  by  means  whereof 
the  said  cattle,  in  the  said  declaration  mentioned, 
at  the  said  several  times  when,  etc.,  then  lawfully 
feeding  and  depasturing  in  the  said  close  of  the 
plaintiff,  without  the  knowledge  of  the  plaintiff, 
and  against  his  will,  erred  and  escaped  thereout 
into  the  close  in  which,  etc.,  through  the  defects 
and  insufficiency  of  the  said  fence,  and  remained 
therein  until  the  defendant,  before  the  plaintiff  had 
or  could  have  any  notice  that  the  said  cattle  were 
in  the  said  place  in  which,  etc.,  to  wit,  at  the  said 
time  when,  etc.,  of  his  own  wrong,  took  the  said 


APPENDIX   II.  321 

cattle  in  the  said  place  in  "which,  etc.,  and  unjust  1  \ 
detained  the  same  against  sureties  and  pledges,  in 
manner  and  form  as  he  the  plaintiff  hath  above 
thereof  complained  against  him  the  defendant :  and 
this  the  plaintiff  is  ready  to  verify.  Wherefore, 
inasmuch  as  the  said  defendant  has  above  acknow- 
ledged the  taking  of  the  said  cattle,  in  the  said 
place  in  which,  etc.,  he,  the  plaintiff,  prays  judg- 
ment and  his  damages,  by  reason  of  the  taking 
and  unjustly  detaining  the  same  to  be  adjudged  to 
him,  etc. 


Heplication,  denial  of  liability  to  repair  the  fences. 

And  the  defendant,  as  to  the  said  plea  in  bar  of 
the  plaintiff  to  the  avowry  of  him  the  defendant 
above  pleaded,  says  that  he,  by  reason  of  anything 
by  the  plaintiff  in  his  said  plea  in  bar  alleged, 
ought  not  to  be  barred  from  (avowing)  the  taking 
of  the  said  cattle  in  the  said  declaration  mentioned 
in  the  said  place  in  which,  etc.,  and  justly,  etc. : 
because  he  says  that  he,  the  defendant,  and  all 
others,  the  tenants  and  occupiers  of  the  said  close 
in  which,  etc.,  for  the  time  being,  from  time  whereof 
the  memory  of  man  is  not  to  the  contrary,  have  not 
repaired  and  amended,  nor  have  been  used  and 
accustomed  to  repair  and  amend,  nor  of  right  ought 


322  APPENDIX    II. 

to  have  repaired  and  amended,  nor  ought  the  de- 
fendant before,  or  at  the  said  several  times  when, 
etc.,  of  right  to  have  repaired  and  amended,  nor 
still  of  right  ought  to  repair  and  amend  the  said 
fence  between  the  said  close  of  the  defendant  and 
the  said  close  in  which,  etc.,  when  and  as  often  as 
occasion  hath  required  to  prevent  cattle  feeding 
and  depasturing,  or  being  in  the  said  close  of  the 
defendant,  from  erring  or  escaping  thereout, 
through  the  defects  or  insufficiency  of  the  said 
fence,  into  the  said  close  in  which,  etc.,  and  doing 
damage  there,  in  manner  and  form  as  the  plaintiff 
hath  above  in  his  said  plea  in  bar  in  that  behalf 
alleged ;  and  of  this  he,  the  defendant,  puts  him- 
self upon  the  country,  etc. 


Replication,  denial  of  defect  of  fences. 

(Commencement  as  above.)  Because,  he  says, 
that  the  said  fence,  in  the  said  plea  in  bar  men- 
tioned, before  or  at  the  said  time  when,  etc.,  was 
not  ruinous,  prostrate,  or  fallen  down  for  want  of 
needful  or  necessary  making,  repairing,  or  amend- 
ing thereof,  in  manner  and  form  as  the  plaintiff  has 
above  in  his  said  plea  in  bar  in  that  behalf  alleged; 
and  of  this,  he,  the  defendant,  put  himself  on  the 
country,  etc. 


ArPEXDix  ir.  323 

Avowry  of  distress  for  arrears  of  ground  rent,  from 
the  case  of  Franciscus  v.  fieigart.     4  Watte  98. 

And  the  said  Emanuel  C.  Reigart,  by  "William 
Norris  his  attorney,  comes  and  defends  the  wrong, 
etc.,  and  injury,  etc.,  when,  etc.,  and  as  the  bailiff 
of  John  B.  Newman,  well  acknowledges  the  tak- 
ing of  the  said  goods  and  chattels  in  the  said  de- 
claration mentioned,  in  the  said  place  which,  etc., 
justly,  etc.;  because  he  saith  that  the  said  George 
Franciscus,  continually,  from  and  after  the  first 
day  of  May,  A.D.  1820,  until  the  first  day  of  May, 
A.  D.  1831,  and  at  the  same  time,  etc.,  enjoyed  a 
certain  lot  of  ground,  situate,  etc.,  and  that  the 
said  George  Franciscus,  the  plaintiff,  so  continually 
enjoyed  the  same  lot  for  all  the  time  aforesaid,  as 
the  tenant  of  the  said  John  B.  Newman,  by  virtue 
of  a  certain  demise  or  grant  thereof  from  James 
Hamilton  to  Thomas  Cookson,  his  heirs  and  assigns 
theretofore  made,  at  and  under  the  yearly  rent  of 
eighty  shillings,  sterling  money  of  Great  Britain, 
equal  in  value  to  seventeen  dollars  and  seventy- 
eight  cents,  lawful  money  of  the  United  States, 
payable  yearly  on  the  first  day  of  May,  in  each  and 
every  year  for  ever,  unto  the  said  James  Hamilton, 
his  heirs  and  assigns.  (The  said  George  Francis- 
cus  being  the   assignee   or   alienee   of  the   said 


324  APPENDIX   II. 

Thomas  Cookson,  the  grantor  of  the  said  lot  and 
premises ;  and  the  said  John  B.  Newman,  being 
the  grantee  or  alienee  in  fee  simple  of  James 
Hamilton  the  grantor  of  the  said  lot),  and  because 
one  hundred  and  ninety-five  and  fifty-eight-one- 
hundredth  of  the  rent  aforesaid,  due  and  payable 
by  the  said  George  Franciscus  to  the  said  John  B. 
Newman,  for  eleven  years'  rent  of  the  said  lot  of 
ground,  etc.  etc.,  as  in  the  usual  form. 


Plea  in  bar  to  an  avowry  for  rent,  that  plaintiff  had 
paid  an  equal  sum  to  the  original  ground  rent 
landlord. 

And  the  plaintiff  says,  that  the  said  D.,  notwith- 
standing anything  by  him  above  pleaded,  ought 
not  to  avow  the  taking  of  the  said  goods,  etc.,  to  be 
just,  because  he  says,  "that  A.  A.,  deceased,  in 
his  lifetime  and  at  the  time  of  his  death,  and  the 
said  D.,  from  the  time  of  his  death,  until  and  at 
the  time  when,  etc.,  held  the  said  dwelling-house 
in  which,  etc.,  with  the  appurtenances,  as  tenants 
thereof  to  B.  B.,  at  and  under  the  yearly  rent  of 
fifty  dollars,  to  be  paid  in  quarterly  payments  in 
each  and  every  year,  to  wit,  on,  etc.  etc.,  by  even 
and  equal  portions;  and  that  before  the  said  time 


APPENDIX   II.  325 

when,  etc.,  the  sum  of  twenty  dollars  of  the  said 
last  mentioned  rent  for  four  years  ending  on,  etc., 
became  due  and  in  arrear  from  the  said  D.  to  the 
said  B.  B.,  and  thereupon  the  said  B.  B.  on  the 
said,  etc.,  demanded  payment  of  the  said  arrears 
of  rent  from  the  said  D.,  but  the  said  D.  then  and 
there  refused  to  pay  the  same ;  whereupon  the  said 
B.  B.  afterwards,  and  before  the  time  when,  etc., 
demanded  the  payment  of  the  said  arrears  of  rent 
from  the  said  C.  C,  as  the  occupier  of  the  said 
dwelling-house,  and  threatened  to  distrain  upon 
the  goods  and  chattels  in  and  upon  the  said  dwell- 
ing-house and  premises;  whereupon  the  said  C.  C, 
in  order  to  prevent  the  said  goods  and  chattels,  in 
and  upon  the  said  dwelling-house  and  premises, 
from  being  distrained,  long  before  the  said  time 
when,  etc.,  to  wit,  on.  etc.,  paid  to  the  said  B.  B. 
the  said  twenty  dollars  of  the  rent  aforesaid,  so 
being  in  arrear  and  unpaid  as  aforesaid ;  and  so 
the  plaintiff  says,  that  nothing  of  the  said  twenty 
dollars  of  the  rent  aforesaid  was  in  arrear  to  the 
said  D.,  in  manner  and  form  as  the  said  D.  hath 
above  in  his  said  avowry  alleged;  and  this  the 
plaintiff  is  ready  to  verify;  wherefore,  etc.1'  See 
Sapsford  v.  Fletcher,  4  T.  R.  511. 


326  APPENDIX    II. 

Avowry  oy  one  tenant  in  common. 

(  Usual  commencement  of  avowry.)     Because,  he 
says,  that  the  plaintiff  for  a  long  time,  to  wit,  for 
the  space  of        years,  next  before  and  ending  on 
and  from  thence  until,  and  at  the  time  when, 
etc.,  held  and  enjoyed  one  undivided  moiety  (the 
whole  into  two  equal  moieties  to  be  divided),  of 
the  said  dwelling-house  in  which,  etc.,  with  the 
appurtenances,  as  tenant  thereof  to  the  said  de- 
fendant, by  virtue  of  a  certain  demise  thereof  to  him 
the  said  plaintiff  theretofore  made,  at  and  under  a 
certain  yearly  rent  of        payable  quarterly,  on  the 
etc.  (stating  the  entire  rent,  and  the  days  of  pay- 
ment), in  every  year  by  even  and  equal  portions ; 
and  because  one  undivided  moiety  of  the  sum  of 
dollars,  of  the  rent  aftersaid,  for  the  space  of 
ending  as  aforesaid,  on  the  said       day  of 
in  the  year,  etc.,  was  due  and  in  arrear  from  the 
said  plaintiff  to  the  said  defendant;  he  the  said 
defendant  well  avows  the  taking  of  the  said  goods 
and  chattels  in  the  said  declaration  mentioned,  in 
the  said  dwelling-house,  in  which,  etc.,  and  justly, 
etc.,  as  for  and  in  the  name  of  a  distress  for  the 
said  undivided  moiety  of  the  said  rent  so  due,  and 
in  arrear,  and  unpaid  as  aforesaid,  and  which  said 
rent  still  remains  in  arrear  and  unpaid ;  and  this 


APPENDIX    II.  327 

the  defendant  is  ready  to  verify;  wherefore  he 
prays  judgment,  and  a  return  of  the  said  goods 
and  chattels,  together  with  his  damages,  etc.,  ac- 
cording to  the  form  of  the  statute  in  such  case 
made  and  provided,  to  he  returned  to  him.  (Cog- 
nizance of  him  as  bailiff  of  the  other  tenant  in 
common.)  And  for  a  cognizance  in  this  behalf 
the  said  defendant,  by  leave  of  the  court  here,  for 
this  purpose  had  and  obtained,  according  to  the 
form  of  the  statute  in  such  case  made  and  provided, 
as  bailiff  of  S.  M.  well  acknowledges  the  taking  of 
the  said  goods  and  chattels  in  the  said  declaration 
mentioned,  in  the  said  dwelling-house,  in  which, 
etc.,  and  justly,  etc. ;  because,  he  says,  etc.  (Cog- 
nizance as  bailiff  of  the  other  tenant  in  common 
for  an  undivided  moiety  of  the  rent  due  to  him, 
similar  to  the  foregoing  avowry. 


Declaration  on  replevin  bond  against  one  surety. 

In  the  District  Court  for  the  City  and  County 
of  Philadelphia.     June  Term,  1848,  No. 
Philadelphia,  ss. 

A.  B.,  assignee  of  Henry  Lelar,  Sheriff  of  the 
City  and  County  of  Philadelphia,  according  to  the 
form  of  the  Act  of  Assembly,  in  such  case  made 


328  APPENDIX   II. 

and  provided,  complains  of  J.  S.  being,  etc.,  of  a 
plea  that  he  render  to  the  said  plaintiff,  as  assignee 
as  aforesaid,  the  sum  of  one  thousand  dollars  which 
he  owes  to,  and  unlawfully  detains  from  him,  the 
said  plaintiff,  assignee  as  aforesaid,  for  that  whereas 
heretofore,  to  wit,  on  the  day  of  A.  D.  184  , 
at  Philadelphia  aforesaid,  the  said  plaintiff  and  one 

C.  R.  distrained  the  goods  and  chattels  of  one  C. 

D.  and  one  E.  F.,  late  partners  trading  as  D.  & 
F.,  for  a  certain  sum  of  money  then  due  to  the  said 
plaintiff  for  rent,  and  the  said  goods  and  chattels 
being  so  distrained,  the  said  C.  D.  and  E.  F.,  after- 
wards and  within  the  space  of  five  days  then  next 
ensuing,  to  wit,  on  the  ,  day  of  A.  D.  184  , 
at  Philadelphia  aforesaid,  sued  forth  and  obtained 
out  of  the  District  Court  for  the  City  and  County 
of  Philadelphia,  returnable  to  the  said  District 
Court,  a  writ  of  replevin  commanding  the  said 
sheriff  that  he  should  replevy  and  cause  to  be  de- 
livered the  said  goods  and  chattels  to  the  said  C. 
D.  and  E.  F.  trading  as  D.  &  F.,  and  thereupon 
the  said  H.  Lelar,  so  being  Sheriff  of  the  City  and 
County  of  Philadelphia,  according  to  the  form  of 
the  Act  of  Assembly  in  such  case  made  and  pro- 
vided, did  take  from  the  said  C.  D.  and  E.  E.,  and 
the  said  defendant  and  one  O.  P.  as  sureties,  a 
bond  in  double  the  value  of  said  goods  and  chattels, 
so  distrained  as  aforesaid;  and  the  said  C.  D.  and 


append  rx  n.  329 

E.  F.,  and  one  O.  P.  and  the  said  defendant,  on 
the  day  of  A.D.  184  ,  by  their  certain  writing 
obligatory,  sealed  with  their  respective  seals,  and 
now  shown  to  the  court  here,  the  date  whereof  is, 
to  wit,  the  day  and  year  last  aforesaid,  did  jointly 
and  severally  acknowledge  themselves  to  be  held 
and  firmly  bound  unto  the  said  Henry  Lelar,  Es- 
quire, Sheriff  of  the  City  and  County  of  Phila- 
delphia, in  the  said  just  and  full  sum  of  one  thou- 
sand dollars  lawful  money  of  the  United  States,  to 
be  paid  to  the  said  Henry  Lelar,  Esquire,  his  at- 
torney, executors,  administrators,  or  assigns,  with 
a  condition  thereunder  written  that  if  the  said  C. 
D.  and  E.  F.  should  and  would  prosecute  their 
suit  against  the  said  A.  B.  and  C.  R.  with  effect, 
and  should  and  would  make  return  of  the  said 
goods,  if  return  of  the  same  should  be  adjudged, 
and  should  and  would  also  from  time  to  time,  and 
at  all  times  hereafter,  well  and  sufficiently  keep  and 
save  harmless  and  indemnified,  the  above  named 
sheriff  and  his  officers,  and  his  and  their  heirs,  ex- 
ecutors, and  administrators,  and  every  of  them  of 
and  from  all  manner  of  suits,  action  or  actions, 
costs  or  charges  whatsoever  that  shall  or  may  ac- 
crue to  him  or  them  by  reason  of  the  replevy  and 
delivery  aforesaid,  that  then  the  above  obligation 
to  be  void  and  of  none  effect,  otherwise  to  be  and 
remain  in  full  force  and  virtue;  and  thereupon  the 


330  APPENDIX   H. 

said  sheriff  afterwards,  to  wit,  on  the  day  and  year 
last  aforesaid,  according  to  the  exigence  of  said 
writ,  so  as  aforesaid  sued  forth  and  obtained  at  the 
prayer  of  the  said  C.  D.  and  E.  F.,  replevied  and 
made  deliverance  of  the  said  goods  and  chattels  to 
the  said  C.  D.  and  E.  F.,  according  to  the  duty  of 
his  said  office,  and  afterwards,  to  wit,  at  the  term 
of  ,  A.  D.  184  ,  in  the  District  Court  for  the 
City  and  County  of  Philadelphia,  the  said  C.  D. 
and  E.  F.,  by  their  attorney,  complained  that  the 
said  plaintiff  and  C.  P.,  on  the        day  of        A. 

D.  184  ,  at  Philadelphia  aforesaid,  in  a  certain 
dwelling-house  in  the  said  declaration  described, 
took  the  goods  and  chattels  of  the  said  C.  D.  and 

E.  F.,  in  the  said  declaration  more  fully  and  parti- 
cularly described,  and  them  unjustly  detained 
against  sureties  and  pledges,  to  the  damage  of  the 
said  C.  D.  and  E.  F.  one  thousand  dollars ;  and 
therefore  they  bring  suit.  And  such  proceedings 
were  had  thereupon  in  the  said  plea  in  the  said 
court  at  Philadelphia  aforesaid,  that  afterwards,  to 
wit,  on  the  day  of  A.  D.  184  ,  in  the  said 
District  Court  for  the  City  and  County  of  Phila- 
delphia, and  by  force  of  the  statute  in  such  case 
made  and  provided,  it  was  considered  and  adjudged 
in  and  by  the  said  court  that  the  said  plaintiffs 
take  nothing  by  their  writ  aforesaid,  but  that  they 
and  their  pledges  to  prosecute  be  in  mercy,  etc., 


APPENDIX   II.  331 

and  that  the  said  defendants  do  go  thereof  without 
day,  etc.,  and  that  they  have  a  return  of  the  goods 
and  chattels  taken,  and  it  was  also  considered  that 
the  said  defendant  A.  B.  do  recover  against  the 
said  plaintiffs  the  sum  of  $         ,  being  the  sum  of 
the  arrears  aforesaid  in  the  form  aforesaid  assessed, 
and  also  $         for  his  costs  by  the  court  then  ad- 
judged to  the  said  defendants,  and  with  their  assent 
according  to  the  form  of  the  statute  in  such  case 
made  and  provided  for  their  costs  and  charges  by 
them  laid  out  about  their  defence  in  that  behalf, 
which  said  arrears,  costs,  and  charges  in  the  whole 
amount  to  $       ,  and  that  the  said  defendants  have 
execution  thereof,  as  by  the  record  and  proceedings 
thereof  now  remaining  in  the  said  District  Court 
at  Philadelphia  aforesaid,  more  fully  appears;  and 
the  said  plaintiff  in  fact  saith,  that  the  said  C.  D. 
and  E.  F.  did  not  prosecute  their  said  action  with 
effect  against  the  said  plaintiff  for  the  taking  and 
unjustly  detaining  the  said  goods  and  chattels,  and 
have  not  made  a  return  thereof,  according  to  the 
form  and  effect  of  the  said  condition  of  the  said 
writing  obligatory,  but  have  hitherto  wholly  ne- 
glected and  refused,  and  still  do  neglect  and  refuse 
so  to  do,  whereby  the  said  writing  obligatory  be- 
came forfeited  to  the  said  H.  Lelar,  Esq.,  being 
Sheriff  of  the  said  City  and  County  of  Philadel- 
phia as  aforesaid;  and  the  same  being  so  forfeited, 


332  APPENDIX   II. 

the  said  sheriff  afterwards,  to  wit,  on  the  day 
of  A.  D.  184  ,  at  Philadelphia  aforesaid,  at  the 
request  and  cost  of  the  said  plaintiff  by  indorse- 
ment assigned  the  said  writing  obligatory  to  the 
said  plaintiff  according  to  the  force  and  effect,  etc., 
as  by  the  said  assignment  indorsed  on  the  said 
writing  obligatory  as  aforesaid,  and  to  the  said 
court  now  here  shown,  the  date  whereof  is  the  day 
and  year  last  aforesaid,  may  more  fully  appear. 
By  means  whereof,  and  by  force  of  the  Act  of 
Assembly  in  such  case  made  and  provided,  an 
action  hath  accrued  to  the  said  plaintiff,  as  assginee 
of  the  said  H.  Lelar,  so  being  Sheriff  of  the  City 
and  County  of  Philadelphia,  to  demand  and  have 
of  and  from  the  said  defendant  the  said  sum  of  one 
thousand  dollars  above  demanded;  yet  the  said 
defendant,  although  often  requested  so  to  do,  hath 
not  as  yet  paid  the  said  sum  of  one  thousand  dol- 
lars above  demanded,  or  any  part  of  them,  to  the 
said  Henry  Lelar,  before  the  said  assignment,  or  to 
the  said  plaintiff  as  assignee  as  aforesaid,  or  either 
of  them  since  the  said  assignment,  but  hath  hither- 
to wholly  neglected  and  refused  so  to  do,  and  still 
doth  neglect  and  refuse  to  pay  the  same  or  any 
part  thereof,  to  the  said  plaintiff,  assignee  as  afore- 
said. 


APPENDIX   II.  .'w.'J 

Declaration  against  the  sheriff  for  taking  insufficient 
sureties,  when  the  replevin  was  not  of  a  distress  for 
rent. 

For  that,  whereas,  the  said  plaintiff  on,  etc.,  at 
etc.,  was  possessed  of  one  wagon,  etc.,  of  the  value, 
etc.,  of  his  own  proper  goods  and  chattels,  and  that 
the  said  defendant,  on  the  day  and  year  aforesaid, 
was  sheriff,  etc.,  and  the  said  plaintiff  so  of  the 
goods  and  chattels  possessed,  and  he  the  said  de- 
fendant so  as  aforesaid  being  sheriff,  etc.,  the  dnty 
of  his  said  office  not  considering,  but  contriving 
and  fraudulently  intending  the  said  plaintiff  of  his 
goods  and  chattels  aforesaid  to  deprive  and  defraud, 
on  the  day  and  year  aforesaid,  at,  etc.,  by  color  of 
his  office  aforesaid,  and  under  the  pretence  of  a 
writ  of  replevin  to  him  directed  and  delivered,  the 
goods  and  chattels  aforesaid,  at,  etc.,  being  found, 
at  the  plaint  of  one  J.  R.,  pretending  the  same 
goods  and  chattels  were  the  proper  goods  and 
chattels  of  the  said  J.  R.,  and  to  the  said  J.  R.  of 
right  to  belong,  and  that  the  said  plaintiff  had 
taken  the  goods  and  chattels  aforesaid,  and  the 
same  unjustly  detained,  against  sureties  and 
pledges,  the  goods  and  chattels  aforesaid  to  be  re- 
plevied from  the  possession  of  the  said  plaintiff,  to 
be  delivered  to  the  said  J.  R.,  did  cause  and  pro- 
22 


334  APPENDIX   II. 

cure,  without  sufficient  surety  and  pledges,  or  any 
sufficient  surety,  had  or  taken  to  prosecute   the 
said  suit  and  plaint  of  him  the  said  J.  P.  against 
the  said  plaintiff,  for  the  caption  and  unjust  deten- 
tion of  the  goods  and  chattels  aforesaid,  and  to 
make  a  return  of  the  said  goods  and  chattels  to 
the  said  plaintiff,  if  a  return  should  be  adjudged 
to  the  said  plaintiff,  as  by  the  law  and  custom  of 
the  commonwealth  of  Pennsylvania,  and  the  duty 
of  his  office,  and  the  tenor  of  the  writ  aforesaid,  he 
ought  to  have  done.     And  whereas  afterwards,  to 
wit,  on  the  same  day  and  year  aforesaid,  at,  etc., 
he  the  said  plaintiff  was  summoned  into  the  court 
of  Common  Pleas  of  the  said  county,  to  appear  on 
the  first  Monday  of  March,  then  next  following,  to 
answer  the  said  J.  P.  of  a  plea,  why  he  took  the 
goods  and  chattels  aforesaid,  and  thereupon  it  was 
in  such  manner  proceeded,  that  by  the  said  court 
it  was  considered  that  the  said  plaintiff  should  have 
a  return  of  the  said  goods  and  chattels  aforesaid, 
to  be  delivered  to  him,  which  said  judgment  re- 
mains, and  is  in  full  force  and  vigor,  not  reversed 
or  annulled ;  and  the  said  plaintiff  in  fact  saith,  that 
the  goods  and  chattels  aforesaid,  to  the  aforesaid 
J.  P.,  by  reason  of  the  replevin  aforesaid,  so  as 
aforesaid  delivered,  to  places  obscure  and  unknown 
were  eloigned,  whereby  they  cannot  be  returned  or 
delivered  to  the  said  plaintiff,  and  the  said  plain- 


APPENDIX    II.  335 

tiff  the  goods  and  chattels  aforesaid,  by  the  occasion 
aforesaid,  hath  wholly  lost,  and  is  without  remedy, 
to  the  damage  of  the  said  plaintiff,  etc.1 


Declaration  against  the  sheriff  for  talcing  insufficient 

sureties. 

"  For  that  whereas  the  said  plaintiff  heretofore, 
to  wit,  on,  etc.,  at,  etc.,  in  a  certain  close,  situate, 
etc.  (describe  it  briefly),  took  and  distrained  di- 
vers goods  and  chattels,  to  wit  (here  state  the 
articles),  of  great  value,  to  wit,  of  the  value  of 
$  lawful  money  of  the  United  States,  as  a  dis- 
tress for  certain  arrears  of  rent,  to  wit,  for  the  sum 
of  $  of  like  lawful  money,  then  due  and  owing 
from  one  A.  B.  to  the  said  plaintiff,  for  the  rent  of 
the  said  premises,  with  the  appurtenances,  by 
virtue  of  a  certain  demise  thereof  theretofore  made 
to  the  said  A.  B.,  rendering  rent  for  the  same  ;  and 
the  said  plaintiff  then  and  there  detained  the  said 
goods  and  chattels  (enumerate  them)  so  taken 
and  distrained  for  the  cause  aforesaid,  according 
to  the  laws  and  customs  of  this  commonwealth, 
until  the  said  defendant,  then  being  the  sheriff  of 

1  Fearce  v.  Humphreys,  14  S.  &  11.  '23. 


336  APPENDIX   II. 

the  county  of  Philadelphia,  afterwards,  to  wit,  on 
the  day  and  year  last  aforesaid,  and  within  his 
bailiwick  as  such  sheriff,  to  wit,  at,  etc.,  caused 
the  said  goods  and  chattels  to  be  replevied  and 
delivered  to  the  said  A.  B.,  and  then  and  there 
made  deliverance  thereof  to  the  said  A.  B.,  under 
color  of  his  said  office  as  such  sheriff  as  aforesaid ; 
and  under  pretence  of  a  certain  writ  of  replevin 
issuing  out  of,  and  under  the  seal  of  (state  the 
court),  and  by  which  said  writ,  the  said  writ  recit- 
ing therein  that  the  said  A.  B.  also  therein  named, 
had  complained  that  the  said  plaintiff  in  this  suit 
had  taken  and  unjustly  detained  the  said  goods 
and  chattels  above  mentioned,  and  which  in  the 
said  writ  were  alleged  to  be  the  goods  and  chattels 
of  the  said  A.  B.,  the  said  defendant,  as  sheriff  as 
aforesaid,  was  in  and  by  the  said  writ,  and  in  the 
name  of  the  Commonwealth  of  Pennsylvania,  com- 
manded, that  if  the  said  A.  B.  should  make  him 
secure  of  prosecuting  his  claim  with  effect  against 
E.  F.,  the  present  plaintiff,  then  the  said  defendant 
as  sheriff  aforesaid,  was  commanded  by  the  said 
writ  to  cause  the  said  goods  and  chattels  to  be 
replevied  and  delivered  to  the  said  A.  B.,  and  also 
to  put  by  sureties  and  safe  pledges  the  said  E.  F., 
so  that  he  should  be  and  appear  before  the  judges 
at  Philadelphia,  etc.,  to  answer  the  said  plaintiff 
wherefore  he  took  the  goods  and  chattels  afore- 


APPEXDIX   II.  337 

said,  the  property  of  the  said  plaintiff,  and  the  same 
unjustly  detained  against  sureties  and  safe  pledges, 
and  to  have  then  there  that  writ,  which  said  writ 
duly  bore  test  the  day  of  as  by  the  said 
writ  remaining  of  record  in  the  said  court  of 
at,  etc.,  may  fully  and  at  large  appear,  which  said 
writ  had  been  duly  delivered  to  the  said  defendant 
as  sheriff  as  aforesaid,  to  be  executed  according  to 
law,  to  wit,  at,  etc.,  on,  etc.  And  although  it  was 
the  duty  of  the  said  defendant  before  his  making 
deliverance  of  the  said  distress  to  the  said  A.  B. 
as  aforesaid,  in  pursuance  of  the  Act  of  Assembly 
in  such  case  made  and  provided,  to  take  from  the 
said  A.  B.  and  one  responsible  person  as  surety,  a 
bond  in  double  the  value  of  the  said  goods  and 
chattels  so  distrained  as  aforesaid,  conditioned  for 
the  prosecuting  the  suit  of  replevin  of  the  said  A. 
B.  for  the  taking  of  the  said  goods  and  chattels 
with  effect,  and  without  delay,  and  for  duly  re- 
turning the  goods  and  chattels  so  distrained,  in  case 
a  return  should  be  awarded.  Nevertheless  the 
said  defendant  so  being  such  sheriff  as  aforesaid, 
not  regarding  his  duty  in  that  behalf,  but  contriv- 
ing and  wrongfully  and  unjustly  intending  to  in- 
jure the  said  plaintiff,  and  to  deprive  him  of  the 
benefit  of  his  said  distress,  and  of  the  means  of 
obtaining  satisfaction  for  the  said  arrears  of  rent 
so  due  and  owing  as  aforesaid,  did  not,  nor  would, 


338  appendix  n. 

before  his  making  deliverance  of  the  said  distress 
to  the  said  A.  B.  as  aforesaid,  take  from  the  said 
A.   B.  and  one  responsible   person  as  surety  as 
aforesaid,   such  a  bond   aforesaid,  conditioned  as 
aforesaid ;  but  wrongfully  and  injuriously  wholly 
omitted  and  neglected  so  to  do,  to  wit,  at,  etc., 
aforesaid,  and  on  the  contrary  thereof,  he  the  said 
defendant,  sheriff   as   aforesaid,   wrongfully    and 
unjustly  before  the  replevying  and  delivery  of  the 
said  cattle,  goods  and  chattels  as  aforesaid,  to  wit, 
on,  etc.,  at,  etc.,  aforesaid,  did  take  in  the  name  of 
him  the  said  defendant  sheriff  as  aforesaid,  of  the 
said  A.  B.  and  two  other  persons,  to  wit,  G.  H. 
and   J.    K.,  a  certain   bond,   conditioned  for   the 
prosecuting  of  the  said  suit  of  the  said  plaintiff 
with  effect,  and  without  delay,  and  for  duly  return- 
ing the  said  cattle,  goods  and  chattels,  so  distrained 
as  aforesaid,  in  case  a  return  thereof  should  be 
awarded  as  a  bond  taken  in  pursuance  of  the  said 
statute:  Nevertheless  the  plaintiff  in  fact  saith, 
that  the  said  G.  H.  and  J.  K.,  so  taken  as  sureties 
as  aforesaid,  were  not  good,  able,  sufficient  or  re- 
sponsible sureties   for  prosecuting  the  said   suit 
with  effect,  and  without  delay,  or  for  duly  return- 
ing the  said  cattle,  goods  and  chattels  so  distrained 
as  aforesaid,  in  case  a  return  thereof  should  be  ad- 
judged ;  but  the  said  G.  H.  and  J.  K.  were  wholly 
insufficient  for  that  purpose,  nor  have  the   said 


APPENDIX   H.  339 

cattle,  goods  and  chattels,  or  any  or  either  of  them, 
or  any  part  thereof,  as  yet  been  returned  to  the 
said  plaintiff  in  this  suit,  nor  have  the  said  arrears 
of  rent,  or  any  part  thereof,  been  as  yet  paid  or 
satisfied  to  the  said  plaintiff  in  this  suit,  nor  hath 
the  said  judgment  been  yet  in  any  way  satisfied, 
nor  hath  the  said  A.  B.  hitherto  answered  to  the 
said  plaintiff  in  this  suit,  for  the  value  of  the  said 
cattle,  <roods  and  chattels  so  distrained  as  afore- 
said,  or  any  or  either  of  them,  or  any  part  thereof, 
by  means  of  which  said  premises  he  the  said  plain- 
tiff in  this  suit  hath  been  and  is  wholl}''  deprived 
of  the  said  cattle,  goods  and  chattels,  and  of  the 
benefit  of  the  said  distress,  and  of  the  means  of 
satisfying  the  said  arrears  of  rent,  and  the  said 
costs  and  charges  by  him  in  that  behalf  expended, 
in  and  about  his  said  suit  in  that  behalf,  and  in 
and  about  the  endeavoring  to  obtain  a  return  of 
the  said  cattle,  goods  and  chattels,  to  wit,  at,  etc., 
aforesaid. 


Declaration  on  the  claim  property  hond. 

In  the  District  Court  for  the  City  and  County 
of  Philadelphia. 

Philadelphia,  ss. 
C.  D.  was  summoned  to  answer  Henry  Lelar, 


340  APPEXDIX   II. 

Sheriff  of  the  city  and  county  of  Philadelphia,  of 
a  plea  that  he  render  unto  the  said  plaintiff,  sheriff 
as  aforesaid,  the  sura  of  $         lawful  money  of  the 
United  States,  which  he  owes  to  and  unjustly  de- 
tains from  him,  and  thereupon  the  said  plaintiff, 
sheriff  as  aforesaid,  by  E.  F.  his  attorney,  com- 
plains, For  that,  whereas,  heretofore,  to  wit,  on  the 
day  of        ,  A.  D.  1848,  at  Philadelphia  afore- 
said, A.  B.  sued  forth  and  obtained  out  of  the  Dis- 
trict Court  for  the  city  and  county  of  Philadelphia, 
returnable  to  the  said  District  Court,  a  writ  of  re- 
plevin, commanding  the  said  plaintiff',  sheriff  as 
aforesaid,  that  he  should  replevy  and  cause  to  be 
delivered  certain  goods  and  chattels  to  the  said  A. 
B.,  which  one  L.  M.  unjustly  detained  from  him, 
and  thereupon  the  said  Henry  Lelar,  so  being  she- 
riff of  the  city  and  county  of  Philadelphia,  did 
take  from  the  said  A.  B.,  and  J.  K.,  and  O.  P.,  as 
sureties,  a  bond  in  double  the  value  of  the  said 
goods  and  chattels  so  directed  to  be  replevied  as 
aforesaid,  with  a  condition  thereunder  written  that 
if  the  said  A.  B.  should  and  would  prosecute  his 
suit  with  effect  against  the  said  L.  M.,  and  should 
and  would  make  return  of  the  said  goods,  if  return 
of  the  same  should  be  adjudged,  and  should  and 
would  also  from  time  to  time,  and  at  all  times 
thereafter,    well   and   sufficiently   keep   and   save 
harmless  and  indemnified  the  said  plaintiff,  so  be- 


APPENDIX    ir.  311 

ing  sheriff  as  aforesaid,  and  bis  officers,  and  his 
and  their  heirs,  executors,  and  administrators,  and 
every  of  them,  of  and  from  all  manner  of  suits, 
action  or  actions,  costs  or  charges,  whatsoever,  that 
shall  or  may  accrue  to  him  or  them,  by  reason  of 
the  replevy  and  delivery  aforesaid,  that  then  the 
above  obligation  to  be  void  and  of  none  effect, 
otherwise  to  be  and  remain  in  full  force  and  virtue. 
And  thereupon  the  said  sheriff  afterwards,  to  wit, 
on  the  day  and  year  last  aforesaid,  according  to  the 
exigence  of  said  writ  so  as  aforesaid  sued  forth 
and  obtained  at  the  prayer  of  the  said  A.  B.,  at- 
tempted to  replevy  and  make  deliverance  of  the 
said  goods  and  chattels  to  the  said  A.  B.,  but  was 
prevented  from  making  such  replevin  and  deliver- 
ance of  the  said  goods  and  chattels,  by  a  claim  of 
property  in  the  said  goods  and  chattels  interposed 
by  the  said  L.  M.,  and  thereupon  the  said  plaintiff, 
so  being  sheriff  as  aforesaid,  did  take  from  the  said 
L.  M.j  and  the  said  defendant,  and  one  R.  S.  as 
sureties,  a  bond  in  double  the  value  of  the  said 
goods  and  chattels,  as  by  the  law  and  custom  of 
the  commonwealth  of  Pennsylvania,  and  the  duty 
of  his  office,  he  ought  to  have  done.  And  the  said 
L.  M.,  and  one  R.  S.,  and  the  said  defendant,  on  the 
day  of  ,  A.  D.  184:8,  by  their  certain  writ- 
ing obligatory,  sealed  with  their  respective  seals, 
and  now  shown  to  the  court  here,  the  date  whereof 


342  APPENDIX    II. 

is,  to  wit,  the  day  and  year  last  aforesaid,  did  jointly 
and  severally  acknowledge  themselves  to  be  held 
and  firmly  bound  unto  the  said  Henry  Lelar,  Esq., 
Sheriff  of  the  city  and  county  of  Philadelphia,  in 
the  said  just  and  full  sum  of  one  thousand  dollars, 
lawful  money  of  the  United  States,  to  be  paid  to 
the  said  Henry  Lelar,  Esq.,  his  certain  attorney, 
executors,  administrators,  or  assigns,  with  a  certain 
condition  thereunder  written,  that  if  the  said  L. 
M.  should  and  would  appear  at  the  next  term  of 
the  said  court,  and  then  and  there  make  good  his 
claim  to  the  said  goods  and  chattels,1  and  should 
and  would  well  and  truly  deliver  up  the  said  goods 
and  chattels   to   the  said  A.  B.,   if  the  projierty 
thereof  should  be  adjudged  in  the  said  A.  B.,  and 
should  and  would  well  and  truly  abide  by  the  judg- 
ment of  the  said  court  in  all  things  relating  to  the 
premises,  and  should  also  save  and  keep  harmless, 
and  indemnify  the  said  sheriff  in  the  premises,  then 
the  above  obligation  to  be  void  and  of  none  effect, 
otherwise  to  be  and  remain  in  full  force  and  virtue, 
and  afterwards,  to  wit,  at  the  term  of        ,  A.  D. 
1848,  in  the  District  Court  for  the  city  and  county 
of  Philadelphia,  the  said  A.  B.,  by  X.  Y.,  his  at- 
torney, complained,  that  the  said  L.  M.,  on  the 

1  This  condition  is  not  in  the  bond  as  used  in  Philadelphia. 
The  words  in  italics  are  improperly  in  the  Philadelphia  bond, 
and  should  not  be  declared  on.     See  ante,  282. 


APPENDIX   II.  343 

day  of        1848,  "at  Philadelphia  aforesaid,  in  a 
certain  dwelling-house,  in  the  said  declaration  de- 
scribed, took  the  goods  and  chattels  of  the  said  A. 
B.,  in  the  said  declaration  more  fully  and  particu- 
larly  described,    and    them    unjustly    detained 
against  sureties  and  pledges,  to  the  damage  of  the 
said  A.  B.  of  one  thousand  dollars,  and  therefore 
he  brought  suit,  and  such  proceedings  were  had 
thereupon  in  the  said  plea,  in  the  said  court  at 
Philadelphia  aforesaid,  that  afterwards,  to  wit,  on 
the        day  of        ,  A.  D.  1848,  in  the  said  District 
Court  for  the  said  city  and  county  of  Philadelphia, 
it  was  considered  and  adjudged,  in  and  by  the  said 
court,  that  the  property  in  the  said  goods  and  chat- 
tels was  in  the  said  plaintiff,  and  it  was  also  con- 
sidered that  the  said  plaintiff  do  recover  against 
the  said  defendant,  the  sum  of  $         for  the  value 
of  the  said  goods  and  chattels,  and  also  the  sum  of 
$         as  damages  for   the  detention  of  the  said 
goods,  and  also  $         for  his  costs,  by  the  court 
then  adjudged  to  the  said  plaintiff  for  his  costs  and 
charges  by  him  laid  out  about  his  defence  in  that 
behalf,   which    said    value,   damages,    costs    and 
charges,  in  the  whole,  amount  to  the  sum  of  $       , 
and  that  the  said  plaintiff  have  execution  thereof, 
as  by  the  record  and  proceedings  thereof  now  re- 
maining in  the  said  District  Court  at  Philadelphia 
aforesaid,  more  fully  appears ;  and  the  said  plain- 


344  APPENDIX   IT. 

tiff  in  fact  saith,  that  the  said  L.  M.  did  not  make 
good  his  claim  to  the  said  goods  and  chattels,  nor 
did  he  deliver  wp  the  said  goods  and  chattels  to  the 
said  A.  B.?  or  well  and  truly  abide  by  the  judg- 
ment of  the  said  court  in  all  things  relating  to  the 
premises,  or  save  and  keep  harmless  and  indemni- 
fied the  said  sheriff,  according  to  the  form  and  effect 
of  the  said  condition  of  the  said  writing  obligatory, 
but  hath  hitherto  wholly  neglected  and  refused, 
and  still  doth  neglect  and  refuse  so  to  do,  whereby 
the  said  writing  obligatory  became  forfeited  to  the 
said  plaintiff,  so  being  sheriff  of  the  said  city  and 
county  of  Philadelphia  as  aforesaid ;  By  means 
whereof  an  action  hath  accrued  to  the  said  plain- 
tiff, so  being  sheriff  of  the  city  and  county  of 
Philadelphia,  to  demand  and  have  of  and  from  the 
said  defendant  the  said  sum  of  one  thousand  dol- 
lars above  demanded;  yet  the  said  defendant,  al- 
though often  requested  so  to  do,  hath  not,  as  yet, 
paid  the  said  sum  of  one  thousand  dollars  above 
demanded,  or  any  part  thereof  to  the  said  plaintiff, 
but  hath  hitherto  wholly  neglected  and  refused, 
and  still  doth  neglect  and  refuse  to  pay  the  same 
or  any  part  thereof  to  the  said  plaintiff,  sheriff  of 
the  city  and  county  of  Philadelphia  as  aforesaid. 

1  See  note  to  page  342,  ante. 


APPENDIX  III. 
Statutes* 

ENGLISH  STATUTES. 

Statute  of  Marlbridge,  52  Henry  3d,  ch.  21,  A.  D. 

1267. 

It  is  provided,  also,  that  if  the  beasts  of  any 
man  be  taken,  and  wrongfully  withholden,  the 
sheriff,  after  complaint  made  to  him  thereof,  may 
deliver  them  without  let  or  gainsaying-  of  him  that 
took  the  beasts,  if  they  were  taken  out  of  liberties, 
and  if  the  beasts  were  taken  within  any  liberties, 
and  the  bailiffs  of  the  liberty  will  not  deliver  them, 
then  the  sheriff,  for  default  of  those  bailiffs,  shall 
cause  them  to  be  delivered. 


Statute  of  Gloucester,  6th  Ed.  1,  cli.  1,  sect.  2,  A.  D. 

1278. 

And,   whereas,  before-time,  damages  were   not 
taxed,  but  to  the  value  of  the  issues  of  the  land. 


346  APPENDIX   III. 

It  is  provided  that  the  demandant  may  recover 
against  the  tenant,  the  costs  of  his  writ  purchased, 
together  with  the  damages  above  said.  And  this 
act  shall  hold  place  in  all  cases  where  the  party 
is  to  recover  damages.  And  every  person,  from 
henceforth,  shall  be  compelled  to  render  damages, 
where  the  land  is  recovered  against  him,  upon  his 
own  intrusion  or  his  own  act. 


Statute  Westminster  2d,  ch.  2,  13  Ed.  1,  A.  D.  1285. 

Forasmuch  as  lords  of  fees,  distraining  their 
tenants  for  services  and  customs  due  unto  them, 
are  many  times  grieved,  because  their  tenants  do 
replevy  the  distress  by  writ  or  without  writ.  And 
when  that  lords,  at  the  complaint  of  their  tenants, 
do  come  by  attachment  into  the  county,  or  unto 
another  court,  having  power  to  hold  pleas  of  with- 
ernam, and  do  avow  the  taking  good  and  lawful 
by  reason  that  the  tenants  disavow  to  hold  aught, 
nor  do  claim  to  hold  anything  of  him  (which  took 
the  distress,  and  avowed  it),  he  that  distrained  is 
amerced,  and  the  tenants  go  quit.  To  whom  pun- 
ishment cannot  be  assigned  for  such  disavowing 
by  record  of  the  county,  or  of  other  courts  having 
no  record. 


appendix  in.  347 

II.  It  is  provided  and  ordained  from  henceforth, 
that  where  such  lords  cannot  obtain  justice  in 
counties,  and  such  manner  of  courts  against  their 
tenants,  as  soon  as  they  shall  be  attached  at  the 
suit  of  their  tenants,  a  writ  shall  be  granted  to 
them  to  remove  the  plea  before  the  justices,  before 
whom,  and  none  otherwhere,  justice,  may  be  min- 
istered unto  such  lords.  And  the  cause  shall  be 
put  in  the  writ,  because  such  a  man  distrained  in 
his  fee  for  services  and  customs  to  him  due. 
Neither  is  this  act  prejudicial  to  the  law  commonly 
used,  which  did  not  permit  that  any  plea  should 
be  moved  before  justices  at  the  suit  of  the  defend- 
ant ;  for  though  it  appear  at  the  first  show  that  the 
tenant  is  plaintiff,  and  the  lord  defendant,  never- 
theless, having  respect  to  that,  that  the  lord  hath 
distrained,  and  sueth  for  services  and  customs 
being  behind,  he  appearcth  indeed  to  be  rather 
actor  or  plaintiff,  than  defendant.  And  to  the  in- 
tent, the  justices  may  know  upon  what  fresh  seizin 
the  lords  may  avow  the  distress  reasonable  upon 
their  tenants.  From  henceforth  it  is  agreed  and 
enacted,  that  a  reasonable  distress  may  be  avowed 
upon  the  seizin  of  airy  ancestor  or  predecessor 
since  the  time  that  a  writ  of  novel  disseizin  hath 
run.  And  because  it  chanceth  sometimes  that 
the  tenant,  after  that  he  hath  replevied  his  beasts, 
doth  sell  or  alien  them,  whereby  return  cannot  be 


348  APPENDIX   III. 

made  unto  the  lord  that  distrained,  if  it  be  ad- 
judged. 

III.  It  is  provided  that  sheriffs  or  bailiffs  from 

henceforth  shall  not  only  receive  of  the  plaintiffs 

pledges   for  the  pursuing  of  the  suit,  before  they 

make  deliverance  of  the  distress,  but  also  for  the 

return  of  the  beasts,  if  return  be  awarded.     And  if 

any  take  pledges  otherwise,  he  shall  answer  for 

the  price  of  the  beasts,  and  the  lord  that  distraineth 

shall  have  his  recovery  by  writ,  that  he  shall  restore 

unto  him  so  many  beasts  or  cattle ;  and  if  the  bailiff 

be  not  able  to  restore,  his  superior  shall  restore. 

And  forasmuch  as  it  happeneth  some  time,  that 

after  the  return  of  the  beasts  is  awarded  unto  the 

distrainor,  and  the  party  so  distrained,  after  that  the 

beasts  be  returned,  doth  replevy  them  again,  and 

when  he  seeth  the  distrainor  appearing  in  the  court 

ready  to  answer  him,  does  make  default,  whereby 

a  return  of  the  beasts  ought  to  be  awarded  again 

unto  the  distrainor,  and  so  the  beasts  be  replevied 

twice  or  thrice,  and  infinitely,  and  the  judgments 

given  in  the  king's  courts  take  no  effect  in  this 

case,  whereupon  no  remedy  hath  been  yet  provided. 

In  this  case,  such  process  shall  be  awarded,  that  so 

soon  as  return  of  the  beasts  shall  be  awarded  to  the 

distrainor,  the   sheriff  shall  be  commanded   by  a 

judicial  writ  to  make  return  of  the  beasts  unto  the 


appendix  ni.  349 

distrainor,  in  which  writ  it  shall  be  expressed  thai 
the  sheriff  shall  not  deliver  them  without  writ. 
making  mention  of  the  judgment  given  by  the  jus- 
tices, which  cannot  be  without  a  writ  issuing  out 
of  the  rolls  of  the  said  justices  before  whom  the 
matter  was  moved.  Therefore  when  he  cometh 
unto  the  justices,  and  desireth  replevin  of  the 
beasts,  he  shall  have  a  judicial  writ,  that  the  sheriff 
taking  surety  for  the  suit,  and  also  of  the  beasts  or 
cattle  to  be  returned,  or  the  price  of  them  (if  return 
be  awarded),  shall  deliver  unto  him  the  beasts  or 
cattle  before  returned,  and  the  distrainor  shall  be 
attached  to  come  at  a  certain  day  before  the  jus- 
tices, afore  whom  the  plea  was  moved  in  the  pre- 
sence of  the  parties.  And  if  he  that  replevied 
make  default  again,  or  for  another  cause,  return  of 
the  distress  be  awarded,  being  now  twice  replevied, 
the  distress  shall  remain  irrepleviable.  But  if  a 
distress  be  taken  of  new,  and  for  a  new  cause,  the 
process  above-said  shall  be  observed  in  the  same 
new  distress. 


23 


350  APPENDIX   III. 

Statute  7th,  Henry  8th,  ch.  4,  A.  D.  1516. 

(The  act  concerning  avowries  for  rents  and  ser- 
vices.) 
Sect.  III.  And  also  that  every  avowant,  and  every 
other  person  or  persons  that  make  avowry,  coniz- 
ance,  or  knowledge,  or  justify  as  bailey  to  any  other 
person  or  persons  in  any  replegiari  or  second  de- 
liverance, for  any  rent,  custom,  or  service,  if  their 
avowry,  conizance,  or  justification  be  found  for 
them,  or  the  plaintiffs  in  the  said  actions  otherwise 
barred,  shall  recover  their  damages  and  costs  that 
they  have  sustained,  as  the  plaintiff  should  have 
done,  if  they  had  recovered  in  the  said  replevins. 


Statute  21st,  Heavy  8th,  ch.  19,  A.  D.  1531. 

(Avowries  shall  be  made  by  the  lord  upon  the 
land,  without  naming  his  tenant.) 
Whereas,  as  well  the  noblemen  of  this  realm, 
as  divers  other  persons,  by  fines,  recoveries,  grants, 
and  secret  feoffments,  and  leases  made  by  their  ten- 
ants to  persons  unknown  of  the  lands  and  tenements 
holden  of  them,  have  been  put  from  the  knowledge 
of  their  tenants,  upon  whom  they  should  by  order 


APPENDIX   III.  351 

of  the  law  make  their  avowries  for  their  rents,  cus- 
toms, and  services,  to  their  great  losses  and  liin- 
derances. 

II.  Be  it  therefore  enacted,  established,  and  or- 
dained, by  authority  of  this  present  parliament, 
that  wheresoever  any  manor  lands,  tenements,  and 
other  hereditaments  be  hoi  den  by  any  manner  per- 
son or  persons,  by  rents,  customs,  or  services,  that 
if  the  lord  of  whom  any  such  manor  lands,  tene- 
ments, or  hereditaments  be  soholden,  distrain  upon 
the  same  manor  lands  or  tenements,  for  any  such 
rents,  customs,  or  services,  and  replevin,  thereof 
be  sued,  that  the  lord  of  whom  the  same  lands, 
tenements,  or  hereditaments  be  so  hoi  den,  may 
avow,  or  his  bailiff  or  servant  make  conusance,  or 
jnstify  for  taking  of  the  said  distress  upon  the  same 
lands,  tenements,  or  hereditaments  so  holden  as  in 
lands  or  tenements  within  his  fee  or  seignory,  al- 
leging in  the  said  avowry,  conizance,  and  justifi- 
cation, the  same  manors,  lands,  and  tenements  to  be 
holden  of  him  without  naming  any  person  certain 
to  be  tenant  of  the  same,  and  without  making  any 
avowry,  justification,  or  conizance  upon  any  person 
certain.  And,  likewise,  the  lord,  baily,  or  servant 
to  make  avowry,  justification,  or  conizance  in  like 
manner  and  form  upon  every  writ  sued  of  second 
deliverance. 


352  APPENDIX   III. 

III.  And  also  be  it  enacted  by  the  said  authority, 
that  every  avowant,  and  every  other  person  and 
persons  that  make  any  such  avowry,  justification, 
or  conizance,  as  baily  or  servant  to  any  person  or 
persons  in  any  replegiare,  or  second  deliverance, 
for  rents,  customs,  services,  or  for  damage  feasant, 
or  other  rent  or  rents,  upon  any  distress  taken  in 
any  lands  or  tenements,  if  the  same  avowry,  coniz- 
ance, or  justification  be  found  for  them,  or  the 
plaintiffs  in  the  same  be  non-suit,  or  otherwise 
barred,  that  then  they  shall  recover  their  damages 
and  costs  against  the  said  plaintiff,  as  the  same 
plaintiffs  should  have  done  or  had,  if  they  had  re- 
covered in  the  replegiare  or  second  deliverance 
found  aorainst  the  said  defendants. 

IV.  And  be  it  also  ordained,  that  the  said  plain- 
tiffs and  defendants  in  the  said  writs  of  replegiare, 
or  writs  of  second  deliverance,  and  in  every  of 
them,  shall  have  like  pleas  and  like  aid  prayers  in 
all  such  avowries,  conizances,  and  justifications 
(pleas  of  disclaim  only  except),  as  they  might  have 
had  before  the  making  of  this  act,  and  as  though 
the  said  avowry,  conizance,  or  justification  had  been 
made  after  the  due  order  of  the  common  law. 

V.  And  it  is  further  enacted  by  the  said  autho- 
rity, that  all  such  persons  as  by  order  of  the  com- 


APPENDIX    III.  353 

mon  law  may  lawfully  join  to  the  plaintiffs  or  de- 
fendants in  the  said  writs  of  replegiare  or  second 
deliverance,  as  well  without  process  as  by  proci jss, 
shall  from  henceforth  join  unto  the  said  plaintiffs 
or  defendants,  as  well  without  process  as  by  pro- 
cess, and  to  have  like  pleas  and  like  advantages  in 
all  things  (disclaim  only  except),  as  they  might 
have  done  by  the  order  of  the  common  law  before 
the  making:  of  this  act. 


Statute  4tth,  James  1st,  ch.  3,  A.  D.  1607. 

(An  act  to  give  costs  to  the  defendant  upon  a  non- 
suit of  the  plaintiff,  or  verdict  against  him.) 
Whereas,  in  the  three  and  twentieth  year  of  King 
Henry  the  Eighth  of  famous  memory,  a  good  and 
profitable  law  was  made,  whereby  it  was  enacted, 
that  in  cases  where  the  plaintiff  in  any  action,  bill, 
or  plaint  of  debt,  trespass  upon  the  case,  detinue, 
accompt,  and  in  some  other  actions  therein  especial- 
ly mentioned,  should  become  non-suit,  or  a  verdict 
should  be  had  against  the  said  plaintiff:  that  then,  in 
such  cases,  the  defendant  should  have  judgment  to 
recover  his  costs  against  every  such  plaintiff,  as  by 
the  said  law  appeareth ;  which  law  hath  been  found 
to  be  very  good  and  beneficial  for  the  common- 


351  APPENDIX   III. 

wealth,  and  thereby  many  have  been  discouraged 
from  bringing  frivolous  and  unjust  suits,  because 
such  parties  are  to  make  recompense  to  the  parties 
unjustly  vexed,  for  the  said  unjust  vexations. 

II.  And  forasmuch  as  actions  of  trespass,  and 
actions  of  ejectione  firmse,  and  many  other  actions 
real  and  personal,  are  within  the  same  mischief,  as 
the  said  other  actions  were  at  the  common  law,  and 
yet  were  omitted  out  of  the  provision  of  the  said 
law.     For  remedy  whereof,  be  it  enacted  by  the 
king's  most  excellent  majesty,  the  lords  spiritual 
and  temporal,   and  the  commons  in  this  present 
parliament  assembled,  and  by  the  authority  of  the 
same,  that  if  any  person  or  persons,  at  any  time 
after  the  end  of  this  present  session  of  parliament, 
shall  commence  or  sue  in  any  court  of  record,  or  in 
any  other  court,  any  action,  bill,  or  plaint  of  tres- 
pass, or  ejectione  firmse,  or  any  other  action  what- 
soever, wherein  the  plaintiff  or  defendant  might 
have  costs  (if  in  case  judgment  should  be  given  for 
him),  and  the  plaintiff  or  plaintiffs,  demandant  or 
demandants,  in   any   such  action,  bill,  or  plaint, 
after  appearance  of  the  defendant  or  defendants  be 
non-suited,  or  that  any  verdict  happen  to  pass  by 
any  lawful  trial  against  the  plaintiff  or  plaintiffs, 
demandant  or  demandants  in  any  such  action,  bill, 
or  plaint,  then  the  defendant  and  defendants,  in 


APPENDIX    III.  355 

every  such  action,  bill,  or  plaint,  shall  have  judg- 
ment to  recover  his  costs  against  every  such  plain- 
tiff and  plaintiffs,  demandant  and  demandants,  to 
be  assessed,  taxed,  and  levied  in  manner  and  form 
as  costs  in  the  said  actions  are  to  be  assessed,  taxed, 
and  levied  in  and  by  the  said  law  of  the  three  and 
twentieth  year  of  King  Henry  the  Eighth. 


Statute  17,  Charles  2d,  cli.  7,  A.  D.  1665. 

(An  act  for  a  more  speedy  and  effectual  proceed- 
ing upon  distresses  and  avowries  for  rents.) 

Forasmuch  as  the  ordinary  remedy  for  arrear- 
ages of  rents  is  by  distress  upon  the  lands  charge- 
able therewith;  and  yet,  nevertheless,  by  reason 
of  the  intricate  and  dilatory  proceedings  upon  re- 
plevins, that  remedy  is  become  ineffectual : — 

II.  For  remedy  thereof,'  It  is  enacted  by  the 
king's  most  excellent  majesty,  with  the  advice  and 
assent  of  the  lords  spiritual  and  temporal,  and 
commons  in  this  present  parliament  assembled,  and 
by  authority  of  the  same,  That  whensoever  any 
plaintiff  in  replevin  shall  be  non-suit  before  issue 
joined  in  any  suit  of  replevin  by  plaint  or  writ  law- 
fully returned,  removed,  or  depending  in  any  of 
the  king's  courts  at  "Westminster,  that  the  defend- 


356  APPENDIX   III. 

ant  making  a  suggestion  in  nature  of  an  avowry 
or  cognizance  for  such  rent  to  ascertain  the  court 
of  the  cause  of  distress ;  the  court  upon  his  prayer 
shall  award  a  writ  to  the  sheriff  of  the  county 
where  the  distress  was  taken,  to  inquire  by  the 
oaths  of  twelve  good  and  lawful  men  of  his  baili- 
wick, touching  the  sum  in  arrear  at  the  time  of 
such  distress  taken,  and  the  value  of  the  goods  or 
cattle  distrained ;  and  thereupon  notice  of  fifteen 
days  shall  be  given  to  the  plaintiff  or  his  attorney 
in  court  of  the  sitting  of  such  inquiry.  And  there- 
upon the  sheriff  shall  inquire  of  the  truth  of  the 
matters  contained  in  such  writ,  by  the  oaths  of 
twelve  good  and  lawful  men  of  his  county :  and 
upon  the  return  of  such  inquisition,  the  defendant 
shall  have  judgment  to  recover  against  the  plaintiff 
the  arrearages  of  such  rent,  in  case  the  goods  or 
cattle  distrained  shall  amount  unto  that  value: 
and  in  case  they  shall  not  amount  to  that  value, 
then  so  much  as  the  value  of  the  said  goods  and 
chattels  so  distrained  shall  amount  unto,  together 
with  his  full  costs  of  suit,  and  shall  have  execu- 
tion thereupon  by  fieri  facias  or  elegit,  or  other- 
wise, as  the  law  shall  require;  and  in  case  such 
plaintiff  shall  be  non-suit,  after  cognizance  or 
avowry  made,  and  issue  joined,  or  if  the  verdict 
shall  be  given  against  such  plaintiff;  then  the 
jurors  that  are  impanelled  or  returned  to  inquire 


APPEXDIX  m.  '■>■) 7 

of  such  issue,  shall,  at  the  prayer  of  the  defendant, 
inquire  concerning  the  sum  of  the  arrears,  and  the 
value  of  the  goods  or  cattle  distrained:  and  there- 
upon the  avowant,  or  he  that  makes  cognizance, 
shall  have  judgment  for  such  arrearages,  or  so  much 
thereof  as  the  goods  or  cattle  distrained  amount 
unto,  together  with  his  full  costs,  and  shall  have 
execution  for  the  same  by  fieri  facias  or  elegit,  or 
otherwise  as  the  law  shall  require. 

III.  And  be  it  further  enacted  by  the  authority 
aforesaid,  that  if  judgment  in  any  of  the  courts 
aforesaid  be  given  upon  demurrer  for  the  avowant, 
or  him  that  maketh  cognizance  for  any  rent,  the 
court  shall,  at  the  .prayer  of  the  defendant,  award 
a  writ  to  inquire  of  the  value  of  such  distress;  and 
upon  the  return  thereof,  judgment  shall  be  given 
for  the  avowant,  or  him  that  makes  cognizance,  as 
aforesaid,  for  the  arrears  alleged  to  be  behind  in 
such  avowry  or  cognizance,  if  the  goods  or  cattle 
so  distrained  shall  amount  to  that  value.  And  in 
case  they  shall  not  amount  to  that  value,  then  for 
so  much  as  the  said  goods  or  cattle  so  distrained 
amount  unto,  together  with  his  full  costs  of  suit, 
and  shall  have  like  execution  as  aforesaid. 

IY.  Provided  always,  and  be  it  enacted,  that, 
in  all  cases  as  aforesaid,  where  the  value  of  the 


358  APPENDIX   III. 

cattle  distrained  as  aforesaid,  shall  not  be  found  to 
be  to  the  full  value  of  the  arrears  distrained  for, 
that  the  party  to  whom  such  arrears  were  due, 
his  executors  or  administrators,  may  from  time 
to  time  distrain  again  for  the  residue  of  the  said 
arrears. 


Statute  11,  Geo.  2d,  ch.  19,  §  22,  23,  A.  D.  1738. 

And  whereas  great  difficulties  often  arise  in 
making  avowries  or  conuzance  upon  distresses  for 
rent,  quit  rents,  reliefs,  heriots,  and  other  services, 
Be  it  further  enacted  by  the  authority  aforesaid, 
that  from  and  after  the  said  twenty-fourth  day  of 
June,  1738,  it  shall  and  may  be  lawful  to  and  for 
all  defendants  in  replevin  to  avow  or  make  conu- 
zance generally,  that  the  plaintiff  in  replevin  or 
other  tenant  of  the  lands  and  tenements,  whereon 
such  distress  was  made,  enjoyed  the  same  under  a 
grant  or  demise  at  such  a  certain  rent,  during  the 
time  wherein  the  rent  distrained  for  incurred,  which 
rent  was  then  and  still  remains  due ;  or  that  the 
place  where  the  distress  was  taken  was  parcel  of 
such  certain  tenements,  held  of  such  honor,  lord- 
ship, or  manor,  for  which  tenements,  the  rent,  re- 
lief, heriot,  or  other  service  distrained  for,  was  at 


APPENDIX   III.  359 

the  time  of  such  distress,  and  still  remains  due ; 
without  further  setting  forth  the  grant,  tenure, 
demise,  or  title,  of  such  landlord  or  landlords, 
lessor  or  lessors,  owner  or  owners  of  such  manor, 
any  law  or  usage  to  the  contrary  notwithstanding. 
And  if  the  plaintiff  or  plaintiffs  in  such  action 
shall  become  non-suit,  discontinue  his,  her  or  their 
action,  or  have  judgment  given  against  him,  her  or 
them,  the  defendant  or  defendants  in  such  replevin 
shall  recover  double  costs  of  suit. 

XXIII.  And  to  prevent  vexatious  replevins  of 
distresses  taken  for  rent,  Be  it  enacted,  by  the 
authority  aforesaid,  that  from  and  after  the  twenty- 
fourth  day  of  June,  1738,  all  sheriffs,  and  other 
officers,  having  authority  to  grant  replevins,  may 
and  shall  in  every  replevin  for  a  distress  for  rent 
take  in  their  own  names  from  the  plaintiff,  and  two 
responsible  persons  as  sureties,  a  bond  in  double 
the  value  of  the  goods  distrained  (such  value  to 
be  ascertained  by  the  oath  of  one  or  more  credible 
witness  or  witnesses  not  interested  in  the  goods  or 
distress,  which  oath  the  person  granting  such  re- 
plevin is  hereby  authorized  and  required  to  ad- 
minister), and  conditioned  for  prosecuting  the  suit 
with  effect,  and  without  delay,  and  for  duly  return- 
ing the  goods  and  chattels  distrained,  in  case  a 
return  shall  be  awarded  before  any  deliverance  be 


360  APPENDIX   III. 

made  of  the  distress ;  and  that  such  sheriff  or  other 
officer  as  aforesaid  taking  any  such  bond,  shall,  at 
the  request  and  cost  of  the  avowant  or  person 
making  conuzance,  assign  such  bond  to  the  avow- 
ant or  person  aforesaid,  by  endorsing  the  same, 
and  attesting  it  under  his  hand  and  seal  in  the 
presence  of  two  or  more  credible  witnesses  ;  which 
may  be  done  without  any  stamp,  provided  the  as- 
signment so  endorsed  be  duly  stamped  before  any 
action  be  brought  thereon;  and  if  the  bond  so  taken 
and  assigned  be  forfeited,  the  avowant  or  person 
making  conuzance  may  bring  an  action  and  re- 
cover thereupon  in  his  own  name ;  and  the  court 
where  such  action  shall  be  brought  may,  by  a  rule 
of  the  same  court,  give  such  relief  to  the  parties 
on  such  bond,  as  may  be  agreeable  to  justice  and 
reason ;  and  such  rule  shall  have  the  nature  and 
effect  of  a  defeasance  to  such  bond. 


PENNSYLVANIA  STATUTES. 

Act  0/1705.     1  SmitJi's  Laws  44. 

Sect.  XII.  It  shall  and  may  be  lawful  for  the 
justices  of  each  county  in  this  province  to  grant 
writs  of  replevin  in  all  cases  whatsoever,  where 


APPENDIX   III.  361 

replevins  may  be  granted  by  the  laws  of  England, 
taking  security  as  the  said  law  directs,  and  make 
them  returnable  to  the  respective  courts  of  com- 
mon pleas,  in  the  proper  county,  there  to  be  de- 
termined according  to  law. 


Act  of  21st  March,  1772.    1  Smiih's  Laws  37a 

(An  act  for  the  sale  of  goods  distrained  for  rent, 
and  to  secure  such  goods  to  the  persons  distrain- 
ing the  same,  for  the  better  security  of  rents, 
and  for  other  purposes  therein  mentioned.) 

"Whereas,  the  most  ordinary  and  ready  way  for 
recovery  of  arrears  of  rent  is  by  distress,  and  no 
provision  hath  yet  been  made  by  the  laws  of  this 
province,  that  such  distresses  may  be  sold,  and  by 
the  common  law  the  same  may  be  only  detained, 
as  pledges  for  enforcing  the  payment  of  such  rent, 
and  the  persons  distraining  have  little  benefit 
thereby.     For  the  remedying  whereof, 

I.  Sect.  I.  Where  any  goods  or  chattels  shall 
be  distrained  for  any  rent  reserved  and  due,  upon 
any  demise,  lease,  or  contract  whatsoever,  and  the 
tenant  or  owner  of  the  goods  so  distrained  shall 
not,  within  five  days  next  after  such  distress  taken, 


302  APPENDIX   III. 

and  notice  thereof,  with  the  cause  of  such  taking, 
left  at  the  mansion  house,  or  other  most  notorious 
place  on  the  premises,  charged  with  the  rent  dis- 
trained for,  replevy  the  same  with  sufficient  surety 
to  be  given  to  the  sheriff,  according  to  law,  then 
and  in  such  case,  after  such  distress  and  notice  as 
aforesaid,  and  expiration  of  the  said  five  days,  the 
person  distraining  shall  and  may  with  the  sheriff, 
under-sheriff,  or  any  constable  in  the  city  or  county 
where  such  distress  shall  be  taken  (who  are  hereby 
required  to  be  aiding  and  assisting  therein),  cause 
the  goods  and  chattels  so  distrained  to  be  appraised 
by  two  reputable  freeholders,  who  shall  have  and 
receive  for  their  trouble  the  sum  of  two  shillings 
per  diem  each,  and  shall  first  take  the  following 
oath  or  affirmation :  I,  A.  B.,  will  well  and  truly, 
according  to  the  best  of  my  understanding,  appraise 
the  goods  and  chattels  of  C.  D.,  distrained  on  for 
rent  by  E.  F.,  which  oath  or  affirmation  such 
sheriff,  under-sheriff,  or  constable  are  hereby  em- 
powered and  required  to  administer;  and  after 
such  appraisement,  shall  or  may,  after  six  days' 
public  notice,  lawfully  sell  the  goods  and  chattels, 
so  distrained,  for  the  best  price  that  can  be  gotten 
for  the  same,  for  and  towards  satisfaction  of  the 
rent  for  which  the  said  goods  and  chattels  shall  be 
distrained,  and  of  the  charges  of  such  distress,  ap- 
praisement, and  sale,  leaving  the  overplus,  if  any, 


APPENDIX   III.  363 

in  the  hands  of  the  said  sheriff,  under-sheriff,  or 
constable,  for  the  owner's  use. 

Sect.  "V.  In  case  any  lessee  for  life,  or  lives, 
term  of  years,  at  will,  or  otherwise,  of  any  mes- 
suages, lands,  or  tenements  upon  the  demise 
whereof  any  rents  are  or  shall  be  reserved  or  made 
payable,  shall,  from  and  after  the  publication  of 
this  act,  fraudulently  or  clandestinely  convey  or 
carry  off  or  from  such  demised  premises,  his  goods 
and  chattels,  with  intent  to  prevent  the  landlord 
or  lessor  from  distraining  the  same  for  arrears  of 
such  rent  so  reserved  as  aforesaid,  it  shall  and 
may  be  lawful  to  and  for  such  lessor  or  landlord, 
or  any  other  person  or  persons,  by  him  for  that 
purpose  lawfully  empowered,  within  the  space  of 
thirty  days  next  ensuing  such  conveying  away  or 
carrying  off  such  goods  or  chattels  as  aforesaid,  to 
take  and  seize  such  goods  and  chattels,  wherever 
the  same  may  be  found,  as  a  distress  for  the  said 
arrears  of  such  rent,  and  the  same  to  sell  or  other- 
wise dispose  of,  in  such  manner  as  if  the  said  goods 
and  chattels  had  actually  been  distrained  by  such 
lessor  or  landlord  in  and  upon  such  demised  pre- 
mises, for  such  arrears  of  rent. 

Sect.  VI.  Provided,  that  nothing  herein  con- 
tained shall  extend,  or  be  deemed  or  construed  to 


SCA  appendix  in. 

extend,  to  empower  such  lessor  or  landlord  to  take 
or  seize  any  such  goods  or  chattels,  as  a  distress 
for  arrears  of  rent,  which  shall  be  bona  fide,  and 
for  a  valuable  consideration,  sold  before  such 
seizure  made  to  any  person  or  persons  not  privy 
to  such  fraud  as  aforesaid,  anything  herein  to  the 
contrary  notwithstanding. 

Sect.  VII.  It  shall  and  may  be  lawful  to  and 
for  every  lessor  or  landlord,  lessors  or  landlords,  or 
his,  her,  or  their  bailiff,  receiver,  or  other  person 
or  persons  empowered  by  him,  her,  or  them,  to  take 
and  seize  as  a  distress  for  arrears  of  rent,  any  cat- 
tle or  stock  of  their  respective  tenant  or  tenants, 
feeding  or  depasturing  upon  all  or  any  part  of  the 
premises  demised  or  holden;  and  also  to  take  and 
seize  all  sorts  of  corn  and  grass,  hops,  roots,  fruits, 
pulse,  or  other  products  whatsoever,  which  shall 
be  growing  on  any  part  of  the  estate  or  estates  so 
demised  or  holden,  as  a  distress  for  arrears  of  rent, 
and  to  appraise,  sell,  or  otherwise  dispose  of  the 
same  towards  satisfaction  of  the  rent  for  which 
such  distress  shall  have  been  taken,  and  of  the 
charges  of  such  distress,  appraisement,  and  sale, 
in  the  same  manner  as  other  goods  and  chattels 
may  be  seized,  distrained,  and  disposed  of;  and 
the  purchaser  of  any  such  corn,  grass,  hops,  roots, 
fruits,  pulse,  or  other  products,  shall  have  free 


APPENDIX    III.  3G5 

egress  and  regress  to  and  from  the  same,  when 
growing,  to  repair  the  fences  from  time  to  time ; 
and,  when  ripe,  to  cut,  gather,  make,  cure,  and  lay 
up  and  thrash,  and  after  to  carry  the  same  away, 
in  the  same  manner  as  the  tenant  might  legally 
have  done,  had  such  distress  never  been  made. 

Sect.  X.  And  whereas  great  difficulties  often 
arise  in  making  avowries  or  conusance  upon  dis- 
tresses for  rent,  Be  it  enacted,  That  it  shall  and  may 
be  lawful  for  all  defendants  in  replevin  to  avow 
and  make  conusance  generally  that  the  plaintiff  in 
replevin,  or  other  tenant  of  the  lands  and  tene- 
ments whereon  such  distress  was  made,  enjoyed 
the  same  under  a  grant  or  demise,  at  such  a  certain 
rent  or  service,  during  the  time  wherein  the  rent 
or  service  distrained  for  incurred,  which  rent  or 
service  was  then  and  still  remains  due,  without 
further  setting  forth  the  grant,  tenure,  demise,  or 
title  of  such  landlord  or  landlords,  lessor,  or  lessors, 
any  law  or  usage  to  the  contrary  notwithstanding; 
and  if  the  plaintiff'  or  plaint  ill's,  in  such  action, 
shall  become  non-suit,  discontinue  his,  her,  or  their 
action,  or  have  judgment  given  against  him,  her, 
or  them,  the  defendant  or  defendants  in  such  re- 
plevin shall  recover  double  costs  of  suit. 

Sect.  XI.  And  to  prevent  vexatious  replevins  of 
24 


366  appexdix  in. 

distresses  taken  for  rent,  Be  it  enacted,  That  all 
sheriffs  and  other  officers,  having  authority  to  serve 
replevins,  may  and  shall,  in  every  replevin  of  a  dis- 
tress for  rent,  take  in  their  own  names  from  the 
plaintiff,  and  one  responsible  person  as  surety,  a 
bond  in  double  the  value  of  the  goods  distrained 
(such  value  to  be  ascertained  by  the  oath  or  affirma- 
tion of  one  or  more  credible  person  or  persons,  not 
interested  in  the  goods  or  distress ;  which  oath  or 
affirmation  the  person  serving  such  replevin  is 
hereby  authorized  and  required  to  administer),  and 
conditioned  for  prosecuting  the  suit  with  effect  and 
without  delay,  and  for  duly  returning  the  goods 
and  chattels  distrained,  in  case  a  return  shall  be 
awarded,  before  any  deliverance  be  made  of  the 
distress,  and  such  sheriff,  or  other  officer,  as  afore- 
said, taking  any  such  bond,  shall,  at  the  request 
and  costs  of  the  avowant  or  person  making  cogni- 
zance, assign  such  bond  to  the  avowant  or  person 
aforesaid,  by  endorsing  the  same  and  attesting  it 
under  his  hand  and  seal,  in  the  presence  of  two 
credible  witnesses ;  and  if  the  bond  so  taken  and 
assigned  be  forfeited,  the  avowant  or  person  mak- 
ing cognizance  may  bring  an  action  and  recover 
thereon  in  his  own  name ;  and  the  court,  where 
such  action  shall  be  brought,  may,  by  a  rule  of  the 
same  court,  give  such  relief  to  the  parties  upon 
such  bond,  as  may  be  agreeable  to  justice  and  rea- 


APPENDIX   III.  367 

son ;  and  such  rule  shall  have  the  nature  and  effect 
of  a  defeasance  to  such  bond. 


Act  of  Sd  April,  1779,  1  Smith's  Laws  470. 

(And  act  declaring  replevins,  attachments,  judg- 
ments and  executions,  in  certain  cases  to  be 
erroneous  and  void.) 

Sect.  I.  "Whereas  divers  writs  of  replevin  have 
of  late  been  granted  and  issued  for  goods  and  chat- 
tels taken  in  execution,  and  for  fines  and  penalties 
legally  incurred  and  due  to  this  commonwealth,  to 
the  delay  of  public  justice,  and  to  the  great  vexa- 
tion of  the  officers  concerned  in  taking  and  levying 
the  same: — 

Be  it  enacted, — 

Sect.  II.  All  writs  of  replevin  granted  or  issued 
for  any  owner  or  owners  of  any  goods  or  chattels, 
levied,  seized  or  taken  in  execution,  or  by  distress, 
or  otherwise,  by  any  sheriff,  naval  officer,  lieuten- 
ant, or  sublieutenant  of  the  city  of  Philadelphia 
or  of  any  county,  constable,  collector  of  the  public 
taxes,  or  other  officer,  acting  in  their  several  offi- 
ces under  the  authority  of  the  State,  are  irregular, 


368  APPEXDIX   III. 

erroneous,  and  void;  and  all  such  writs  may  and 
shall  at  any  time  after  the  service,  be  quashed 
(upon  motion)  by  the  court  to  which  they  are  re- 
turnable, the  said  court  being  ascertained  of  the 
truth  of  the  fact  by  affidavit  or  otherwise. 

Sect.  III.  The  court,  besides  quashing  the  said 
writs,  may  and  shall  award  treble  costs  to  the  de- 
fendant or  defendants  in  such  writs ;  and  also,  ac- 
cording to  their  discretion,  order  an  attachment 
against  any  prothonotary  or  clerk,  who  shall  make 
out  or  grant  any  such  writ,  knowing  the  same  to 
be  for  goods  or  chattels  taken  in  execution,  or 
seized  as  aforesaid. 


Act  of  25t7i  March,  1825,  Pampli.  Laws  114. 

(A  supplement  to  an  act  entitled,  "An  act  for  the 

sale  of  goods  distrained  for  rent,  and  to  secure 

such  goods  to  the  persons  distraining  the  same, 

for  the  better  security  of  rents,  and  for  other 

purposes  therein  mentioned.") 

Sect.  I.  In  case  any  lessee  for  life  or  lives,  term 

of  years  at  will,  or  otherwise,  of  any  messuages, 

lands  or  tenements,  situate  in  the  city  or  county  of 

Philadelphia,  upon  the  demise  whereof  any  rents 


APPEXDIX    III.  3G0 

are  or  shall  be  reserved  or  made  payable,  shall,  from 
and  after  the  first  day  of  August  next,  before  such 
rents  as  aforesaid  shall  become  due  and  payable, 
fraudulently  convey  away  or  carry  off  or  from  such 
demised  premises,  his  goods  and  chattels,  with  in- 
tent to  defraud  the  landlord  or  lessor  of  his  remedy 
by  distress,  it  shall  and  maybe  lawful  to  and  for  such 
landlord  or  lessor,  to  consider  his  rents  so  reserved 
as  aforesaid,  as  apportioned  up  to  the  time  of  such 
conveying  away  or  carrying  off,  and  for  him  or  any 
other  person  or  persons,  by  him  for  that  purpose 
lawfully  authorized,  within  the  space  of  thirty  days 
next  ensuing  such  conveying  away  or  carrying  off 
such  goods  and  chattels  as  aforesaid,  to  take  and 
seize  such  goods  and  chattels,  wherever  the  same 
may  be  found,  as  a  distress  for  such  rents  so  ap- 
portioned as  aforesaid,  and  the  same  to  sell  or 
otherwise  dispose  of,  in  such  manner  as  if  the  said 
goods  and  chattels  had  been  distrained  by  such 
lessor  or  landlord,  in  and  upon  such  demised  pre- 
mises, for  rents  actually  due  agreeably  to  the  exist- 
ing laws.  Provided  that  such  landlord  or  lessor, 
before  any  such  goods  or  chattels  are  seized  as 
aforesaid,  shall  make  oath  or  affirmation  before 
some  judge,  alderman  or  justice  of  the  peace,  that 
he  verily  believes  that  said  goods  or  chattels  were 
carried  away  for  the  purpose  of  defrauding  as 
aforesaid:     And,   provided,   that   nothing  herein 


370  appendix  in. 

contained  shall  extend,  or  be  deemed  or  construed  to 
extend,  to  empower  such  lessor  or  landlord,  to  take 
or  seize  any  such  goods  or  chattels,  as  a  distress, 
for  such  rents  so  apportioned  as  aforesaid,  which 
shall  be  bona  fide  and  for  a  valuable  consideration, 
sold  before  such  seizure  made,  to  any  person  or 
persons  not  privy  to  such  fraud  as  aforesaid,  any 
thing  herein  to  the  contrary  notwithstanding:  And 
provided  also,  that  nothing  herein  contained  shall 
be  construed  to  apply  to  contracts  made  before  the 
passage  of  this  act. 


MASSACHUSETTS  REVISED  STATUTES, 
Chapter  143. 

Or   REPLEVIN   OF   PROPERTY. 

Replevin  of  cattle  distrained. 

Sect.  1.  Any  person,  whose  beasts  are  dis- 
trained or  impounded,  in  order  to  recover  a  penalty 
or  forfeiture,  supposed  to  have  been  incurred  by 
their  going  at  large,  or  to  obtain  satisfaction  for 
damages,  alleged  to  have  been  done  by  them,  may 
maintain  a  writ  of  replevin  therefor,  to  be  sued 
out,  and  prosecuted  before  a  justice  of  the  peace 
or  police  court  for  the  county,  in  the  same  form, 


APPENDIX   III.  371 

substantially,  as  heretofore  established  and  used 
in  such  cases. 

2.  The  writ  shall  be  sued  out,  served,  returned, 
and  the  cause  shall  be  heard  and  determined,  in 
like  manner  as  is  provided  in  other  civil  actions 
before  a  justice  of  the  peace,  or  police  court,  in  all 
particulars  in  which  a  different  course  is  not  pre- 
scribed. 

3.  The  writ  shall  not  be  served,  unless  the 
plaintiff,  or  some  one  in  his  behalf,  executes  and 
delivers  to  the  officer  a  bond  to  the  defendant, 
with  sufficient  sureties,  to  be  approved  by  the 
officer,  in  a  penalty  double  the  value  of  the  property 
to  be  replevied,  with  condition  to  prosecute  the 
replevin  to  final  judgment,  and  to  pay  such 
damages  and  costs  as  the  defendant  shall  recover 
against  him,  and  also  to  return  the  said  property, 
in  case  such  shall  be  the  final  judgment. 

4.  The  writ  shall  require  that  the  bond  shall  be 
given  in  double  the  value  of  the  property  to  be 
replevied,  but  shall  not  express  the  sum  or  amount 
for  which  it  shall  be  given.  When  the  parties 
do  not  agree  as  to  the  value  of  the  property,  it 
shall  be  ascertained  by  three  disinterested  and  dis- 
creet persons,  to  be  appointed  and  sworn  by  the 


372  APPENDIX   III. 

officer,  and  the  penalty  of  the  bond  shall  be  equal 
to  double  the  value  ascertained  by  such  persons, 
or  any  two  of  them. 

5.  The  officer  shall  return  such  bond  with  the 
writ,  to  be  left  with  the  justice  or  court  for  the 
use  of  the  defendant;  he  shall  also  include  in  his 
return,  indorsed  on  the  writ,  a  certificate  of  the 
appointment  of  the  three  appraisers,  the  appraisal, 
and  the  expenses  thereof. 

6.  If  it  appears  upon  the  non-suit  of  the  plain- 
tiff, or  upon  a  trial  or  otherwise,  that  the  beasts 
were  lawfully  taken  or  distrained,  the  defendant 
shall  have  judgment  for  the  sum  found  to  be  due 
from  the  plaintiff,  for  the  penalty  or  forfeiture,  or 
for  the  damages,  for  which  the  beasts  were  im- 
pounded, together  with  all  the  legal  fees,  costs, 
charges,  and  expenses,  incurred  by  reason  of  the 
distress,  and  also  the  costs  of  the  action  of  re- 
plevin ;  or  instead  thereof  a  judgment  for  a  return 
of  the  beasts,  to  be  held  by  the  defendant  irre- 
pleviable by  the  plaintiff,  and  for  the  damages  for 
the  taking  thereof  by  the  replevin,  and  for  his 
costs. 

7.  When  the  beasts  are  returned  to  the  de- 
fendant, pursuant  to  such  judgment,  they  shall  be 


APPENDIX    III.  373 

held  and  disposed  of  in  like  manner  as   if  they 
had  not  been  replevied. 

8.  If  it  appears  upon  the  default  of  the  de- 
fendant, or  upon  a  trial  or  otherwise,  that  the 
beasts  were  taken  or  distrained,  without  any  suffi- 
cient or  justifiable  cause,  the  plaintiff  shall  have 
judgment  for  his  damages  caused  by  the  unjust 
taking  and  detaining  of  the  beasts,  and  for  his 
costs  of  the  suit. 

9.  When  it  appears  that  the  sum  demanded  for 
the  penalty,  forfeiture,  or  damages,  exceeds  the 
sum  of  one  hundred  dollars,  or  that  the  property 
of  the  beasts  is  in  question,  and  that  their  value 
exceeds  one  hundred  dollars,  or  that  the  title  to 
real  estate  is  concerned  or  brought  in  question,  the 
case  shall,  at  the  request  of  either  party,  be  trans- 
ferred to  the  Court,  and  be  there  disposed  of,  in 
like  manner  as  is  provided  in  chapter  one  hundred 
and  twenty  with  respect  to  actions  brought  before 
a  justice  of  the  peace,  in  which  the  title  to  real 
estate  is  concerned  or  brought  in  question. 


371  APPENDIX   III. 

Replevin  of  other  property. 

10.  "When  any  goods  exceeding  in  value  twenty 
dollars,  are  unlawfully  taken  or  detained  from  the 
owner  or  person  entitled  to  the  possession,  or 
when  any  goods  of  that  value  attached  on  mesne 
process,  or  taken  on  execution,  are  claimed  by  a 
person  other  than  the  defendant  in  the  suit,  in 
which  they  are  so  attached  or  taken,  such  owner 
or  other  person  may  cause  them  to  be  replevied. 

11.  When  the  property  alleged  to  be  detained 
does  not  exceed  in  value  one  hundred  dollars,  the 
writ  may  be  sued  out  from,  and  returnable  to  a 
justice  of  the  peace,  or  police  court  for  the  county 
in  which  the  goods  are  detained;  and  in  all  cases 
the  writ  may  be  sued  out  of  the  superior  court, 
and  shall  in  such  case  be  returnable  to  the  same 
court  for  the  county  in  which  the  goods  are  de- 
tained ;  it  shall  be  substantially  in  the  form  here- 
tofore established  and  used,  and  in  all  particulars, 
in  which  a  different  course  is  not  prescribed,  shall 
be  sued  out,  served  and  returned  like  other  writs 
in  civil  actions. 

12.  The  officer,  before  serving  the  writ,  shall 
take  from  the  plaintiff  or  some  one  in  his  behalf, 


APPENDIX  III.  375 

a  bond  to  the  defendant,  with  sufficient  sureties, 
in  double  the  value  of  the  goods  to  be  replevied, 
conditioned  like  the  bond  hereinbefore  described 
to  be  taken  on  a  writ  of  replevin,  for  beasts  dis- 
trained or  impounded;  and  the  officer  shall,  in  the 
appraisal  of  the  goods,  and  the  return  of  the  writ, 
in  the  manner  provided  with  respect  to  such  action 
for  beasts  distrained  or  impounded,  except  that 
when  the  writ  is  returnable  to  the  superior  court, 
the  bond  shall  be  left  with  the  clerk  of  the  court 
for  the  use  of  the  defendant. 

13.  If  it  appears  upon  the  non-suit  of  the 
plaintiff,  or  upon  a  trial  or  otherwise,  that  the 
defendant  is  entitled  to  a  return  of  the  goods,  he 
shall  have  judgment  therefor,  with  damages  for 
the  taking  by  the  replevin,  and  his  costs. 

14.  If  the  goods,  when  replevied,  were  taken 
on  execution,  or  if  they  were  then  attached,  and 
judgment  is  afterwards  rendered  for  the  attaching 
creditor,  and  if  in  either  case  the  service  of  the 
execution  is  delayed  by  means  of  the  replevin,  the 
damages  to  be  assessed  for  the  defendant,  in  case 
of  judgment  for  a  return,  shall  not  be  less  than  at 
the  rate  of  twelve  per  cent,  a  year,  on  the  value 
of  the  goods,  for  so  long  as  the  service  of  the 
execution  is  so  delayed. 


376  appendix  in. 

15.  All  sums,  recovered  in  an  action  of  re- 
plevin by  an  officer,  for  or  on  account  of  goods 
attached  or  taken  in  execution  by  him,  or  recovered 
in  an  action  upon  the  bond  given  upon  the  replevin 
of  such  goods,  shall  be  applied  and  disposed  of,  as 
far  as  they  will  go,  in  the  following  manner:  First, 
to  pay  the  lawful  fees  and  charges  of  the  officer, 
the  reasonable  expenses  of  the  action  of  replevin, 
and  the  action  on  the  bond,  so  far  as  they  are  not 
reimbursed  by  the  costs  recovered.  Second,  to 
pay  to  the  creditor,  at  whose  suit  the  goods  were 
attached  or  taken  on  execution,  the  sum,  recovered 
by  him  in  that  suit,  or  as  much  thereof  as  remains 
unpaid,  with  interest  therefor,  at  the  rate  of  twelve 
per  cent,  a  year  so  long  as  the  money  has  been 
withheld  from  the  creditor,  or  the  service  of  his 
execution  delayed  by  reason  of  the  replevin. 
Third,  if  the  attaching  creditor,  in  such  case, 
does  not  recover  judgment  in  the  suit  in  which 
the  attachment  was  made,  or  if  any  balance  re- 
mains of  the  moneys  so  recovered  by  the  officer, 
after  paying  what  is  due  to  the  creditor,  the  same 
shall  be  applied  and  disposed  of,  in  the  same 
manner  as  would  and  ought  to  have  been  done 
with  the  surplus,  if  any,  of  the  proceeds  of  sale, 
in  case  the  same  goods  had  been  sold  on  execu- 
tion. 


APPENDIX   III.  DTI 

16.  All  sums  received  by  such  creditor  from 
the  proceeds  of  the  sale  of  goods  attached  or 
taken  on  execution,  and  afterwards  returned,  or 
received  for  the  value  of  any  goods  not  returned, 
or  recovered  from  the  officer  for  the  insufficiency 
of  the  sureties  in  the  bond,  shall  be  applied 
towards  the  discharge  of  the  judgment  recovered 
by  the  creditor;  and  all  sums,  received  as  interest 
or  damages  for  the  delay  of  his  execution,  shall 
be  applied  one-half  to  the  sole  use  of  the  creditor, 
and  the  other  half  in  discharge  of  the  judgment. 

17.  If  it  appears,  upon  default  or  otherwise, 
that  the  goods  were  unlawfully  taken  or  attached, 
or  unlawfully  detained  by  the  defendant,  the  plain- 
tiff shall  have  judgment  for  his  damages  caused 
thereby,  and  for  his  costs  of  the  suit. 

General  Provisions. 

18.  If  the  goods  which  are  replevied  had  been 
attached,  they  shall,  in  case  of  judgment  for  a 
return,  be  held  liable  to  the  attachment,  until 
final  judgment  in  the  suit,  in  which  they  were  at- 
tached, and  for  thirty  days  thereafter,  in  order  to 
their  being  taken  on  execution.  If  such  final  judg- 
ment is  rendered,  before  the  return  of  the  goods, 
or  if  the  goods  when  replevied  were  seized  and  held 


378  APPENDIX   III. 

on  execution,  they  shall  be  held  subject  to  the  same 
attachment  or  seizure  for  thirty  days  after  the  re- 
turn, in  order  that  the  execution  may  be  served 
thereon,  or  the  service  thereof  completed,  in  like 
manner  as  it  might  have  been,  if  the  goods  had  not 
been  replevied. 

19.  The  damages,  in  replevin,  whether  for  the 
plaintiff  or  for  the  defendant,  shall  be  assessed  by 
the  jury,  by  which  the  cause  is  tried,  if  there  is 
a  trial  by  jury ;  otherwise,  they  shall  be  assessed 
upon  an  inquiry  by  the  court,  or  justice,  or  by  a 
jury  impanelled  for  that  purpose,  as  damages  are 
assessed  in  other  civil  actions. 

20.  The  writ  of  return,  in  all  actions  of  reple- 
vin, shall  be  substantially  in  the  same  form  that 
has  been  heretofore  established  and  used  in  the 
like  case,  and  the  writ  of  reprisal  shall  be  sub- 
stantially in  the  same  form  with  the  writ  hereto- 
fore called  a  writ  of  withernam. 

21.  The  foregoing  provisions  shall  not  preclude 
the  defendant  from  his  remedy  on  the  replevin 
bond,  or  against  the  officer  for  the  insufficiency 
of  the  sureties  in  the  bond,  to  recover  the  value 
of  the  goods,,  together  with  the  loss  or  damage 
caused  by  the  replevin,  notwithstanding  he  has 


APPEXDIX   III.  379 

endeavored  to  recover  the  same  by  the  writs  of 
return  and  of  reprisal,  as  before  provided. 

22.  If  the  officer,  to  whom  the  writ  of  return  is 
committed,  cannot  find  the  beasts  or  other  goods 
that  were  replevied,  so  as  to  deliver  them  to  the 
defendant,  he  shall  make  a  return  of  that  fact 
upon  the  writ  of  return,  and  the  defendant  shall, 
upon  motion,  be  entitled  to  a  writ  of  reprisal,  to 
take  the  beasts  or  goods  of  the  plaintiff  and  de- 
liver them  to  the  defendant,  to  be  held  and  disposed 
of  according  to  law. 


'o 


23.  ]S*o  action  shall  be  maintained  against  any 
person,  as  surety  in  a  replevin  bond,  unless  the  writ 
is  served  on  him  within  one  year  after  the  final 
judgment  in  the  action  of  replevin ;  or  if  the  ac- 
tion is  not  entered  within  one  year  after  the  end 
of  the  term  at  which  the  action  of  replevin  ought 
to  have  been  entered. 


380  APPENDIX   III. 


NEW  YORK  CODE. 

TITLE  V. 

Of  the  manner  of  commencing  civil  actions. 

§  106.  Civil  actions  in  the  Courts  of  Record  of 
this  state  shall  be  commenced  by  the  service  of  a 
summons. 

§  107.  The  summons  shall  be  subscribed  by  the 
plaintiff  or  his  attorney,  and  directed  to  the  de- 
fendant, and  shall  require  him  to  answer  the  com- 
plaint, and  serve  a  copy  of  his  answer  on  the 

person  whose  name  is  subscribed  to  the  summons, 

j 
at  a  place  within  the  state,  to  be  therein  specified, 

in  which  there  is  a  post-office,  within  twenty  days 

after  the  service  of  the  summons,  exclusive  of  the 

day  of  service. 

§  108.    The  plaintiff  should  also  insert  in  the 
summons  a  notice  in  substance  as  follows  : — 

1.  In  an  action  arising  on  contract,  for  the  reco- 
very of  money  only,  that  he  will  take  judgment  for 
a  sum  specified  therein,  if  the  defendant  fail  to 
answer  the  complaint. 


APPENDIX   III.  381 

2.  In  other  actions,  that  if  the  defendant  fail  to 
answer  the  complaint,  the  plaint  ill'  will  apply  to 
the  court  at  a  specified  time  and  place  (after  the 
expiration  of  the  time  for  answering),  for  the  re- 
lief demanded  in  the  complaint. 

§  109.  A  copy  of  the  complaint  shall  be  served 
with  the  summons. 


TITLE  VII. 


CHAPTER   SECOND. 


Claim  and  delivery  of  personal  property. 

§  206  (181).  The  plaintiff,  in  an  action  to  reco- 
ver the  possession  of  personal  property,  may,  at  the 
time  of  issuing  the  summons,  or  at  any  time 
before  answer,  claim  the  immediate  delivery  of 
such  property,  as  provided  in  this  chapter. 

§  207  (182).  Where  a  delivery  is  claimed,  an 
affidavit  must  be  made  by  the  plaintiff,  or  by  some 
one  in  his  behalf,  showing, 

1.  That  the  plaintiff  is  the  owner  of  the  property 
25 


382  APPENDIX   III. 

claimed  (particularly  describing  it),  or  is  lawfully 
entitled  to  the  possession  thereof,  by  virtue  of  a 
special  property  therein;  the  facts  in  respect  to 
which  shall  be  set  forth: 

2.  That  the  property  is  wrongfully  detained  by 
the  defendant: 

3.  The  alleged  cause  of  the  detention  thereof, 
according  to  his  best  knowledge,  information  and 
belief: 

4.  That  the  same  has  not  been  taken  for  a  tax, 
assessment  or  fine,  pursuant  to  a  statute ;  or  seized 
under  an  execution  or  attachment  against  the  pro- 
perty of  the  plaintiff;  or  if  so  seized  that  it  is  by 
statute,  exempt  from  such  seizure ;  and, 

5.  The  actual  value  of  the  property. 

§  208  (183).  The  plaintiff  may,  thereupon,  by  an 
endorsement  in  writing  upon  the  affidavit,  require 
the  sheriff  of  the  county  where  the  property  claimed 
may  be,  to  take  the  same  from  the  defendant,  and 
deliver  it  to  the  plaintiff. 

§  209  (184).  Upon  the  receipt  of  the  affidavit  and 
notice,  with  a  written  undertaking,  executed  by  one 


APPKXDIX    ITI.  383 

or  more  sufficient  sureties,  approved  by  the  sheriff, 
to  the  effect  that  they  are  bound  in  double  the 
value  of  the  property  as  stated  in  the  affidavit,  for 
the  prosecution  of  the  action,  for  the  return  of  the 
property  to  the  defendant,  if  return  thereof  be  ad- 
judged, and  for  the  payment  to  him  of  such  sum 
as  may,  for  any  cause,  be  recovered  against  the 
plaintiff,  the  sheriff  shall  forthwith  take  the  pro- 
perty described  in  the  affidavit,  if  it  be  in  the  pos- 
session of  the  defendant  or  his  agent,  and  retain  it 
in  his  custody.  He  shall,  also,  without  delay,  serve 
on  the  defendant  a  copy  of  the  affidavit,  notice  and 
undertaking,  by  delivering  the  same  to  him  per- 
sonally, if  he  can  be  found,  or  to  his  agent,  from 
whose  possession  the  property  is  taken;  or  if  neither 
can  be  found,  by  leaving  them  at  the  usual  place 
of  abode  of  either,  with  some  person  of  suitable 
age  and  discretion. 

§  210  (185).  The  defendant  may  within  three 
days  after  the  service  of  a  copy  of  the  affidavit  and 
undertaking,  give  notice  to  the  sheriff  that  he  ex- 
cepts to  the  sufficiency  of  the  sureties.  If  he  fail  to 
do  so  he  shall  be  deemed  to  have  waived  all  objec- 
tion to  them;  when  the  defendant  objects,  the  sure- 
ties shall  justify  on  notice,  in  like  manner  as  upon 
bail  on  arrest.  And  the  sheriff  shall  be  responsible 
for  the  sufficiency  of  the  sureties  until  the  objec- 


381  APPENDIX   III. 

tion  to  them  is  either  waived,  as  above  provided, 
or  until  they  shall  justify,  or  new  sureties  shall  be 
substituted,  and  justify.  If  the  defendant  except 
to  the  sureties,  he  cannot  reclaim  the  property  as 
provided  in  the  next  section. 

§  211  (186).  At  any  time  before  the  delivery  of 
the  property  to  the  plaintiff,  the  defendant  may,  if 
he  do  not  except  to  the  sureties  of  the  plaintiff,  re- 
quire the  return  thereof,  upon  giving  to  the  sheriff 
a  written  undertaking,  executed  by  two  or  more 
sufficient  sureties,  to  the  effect  that  they  are  bound 
in  double  the  value  of  the  property,  as  stated  in 
the  affidavit  of  the  plaintiff,  for  the  delivery  there- 
of to  the  plaintiff,  if  such  delivery  be  adjudged, 
and  for  the  payment  to  him  of  such  sum,  as  may, 
for  any  cause,  be  recovered  against  the  defendant. 
If  a  return  of  the  property  be  not  so  required 
within  three  days  after  the  taking  and  service  of 
notice  to  the  defendant,  it  shall  be  delivered  to  the 
plaintiff,  except  as  provided  in  section  216. 

§  212  (187).  The  defendant's  sureties,  upon  a  no- 
tice to  the  plaintiff,  of  not  less  than  two  nor  more 
than  six  days,  shall  justify  before  a  judge  or  justice 
of  the  same  manner  as  upon  bail  on  arrest;  and  upon 
such  justification  the  sheriff  shall  deliver  the  pro- 
perty to  the  defendant.    The  sheriff  shall  be  respon- 


APPEXDIX    III.  385 

sible  for  the  defendant's  sureties  until  they  justify, 
or  until  justification  is  completed  or  expressly 
waived,  and  may  retain  the  property  until  thai 
time.  But  if  they  or  others  in  their  place  fail  to 
justify  at  the  time  and  place  appointed,  he  shall 
deliver  the  property  to  the  plaint  ill'. 

§  213  (188).  The  qualifications  of  sureties,  and 
their  justification,  shall  be  as  prescribed  by  sec- 
tions 194  and  195,  in  respect  to  bail  upon  an  order 
of  arrest. 

§  214  (189).  If  the  property,  or  any  part  thereof, 
be  concealed  in  a  building  or  inclosure,  the  sheriff 
shall  publicly  demand  its  delivery.  If  it  be  not 
delivered,  he  shall  cause  the  building  or  inclosure 
to  be  broken  open,  and  take  the  property  into  his 
possession ;  and,  if  necessary,  he  may  call  to  his 
aid  the  power  of  his  county.   • 

§  215  (190).  Where  the  sheriff  shall  have  taken 
property,  as  in  this  chapter  provided,  he  shall  keep 
it  in  a  secure  place,  and  deliver  it  to  the  party  enti- 
tled thereto,  upon  receiving  his  lawful  fees  for 
taking,  and  his  necessary  expenses  for  keeping  the 
same. 

§  216.  If  the  property  taken  be  claimed  by  any 


386  APPENDIX   III. 

other  person  than  the  defendant  or  his  agent,  and 
such  person  shall  make  affidavit  of  his  title  thereto 
and  right  to  the  possession  thereof,  stating  the 
grounds  of  such  right  and  title,  and  serve  the 
same  upon  the  sheriff,  the  sheriff  shall  not  be 
bound  to  keep  the  property,  or  deliver  it  to  the 
plaintiff,  unless  the  plaintiff,  on  demand  of  him  or 
his  agent,  shall  indemnify  the  sheriff  against  such 
claim  by  an  undertaking  executed  by  two  sufficient 
sureties  accompanied  by  their  affidavit  that  they 
are  each  worth  double  the  value  of  the  property, 
as  specified  in  the  affidavit  of  the  plaintiff,  and 
freeholders  and  householders  of  the  county,  and  no 
claim  to  such  property  by  any  other  person  than 
the  defendant  or  his  agent  shall  be  valid  against 
the  sheriff,  unless  made  as  aforesaid ;  and  notwith- 
standing such  claim,  when  so  made,  he  may  retain 
the  property  a  reasonable  time  to  demand  such 
indemnity.1 

§  217.  The  sheriff  shall  file  the  notice  and  affi- 
davit, with  his  proceedings  thereon,  with  the  clerk 
of  the  court  in  which  the  action  is  pending,  within 
twenty  days  after  taking  the  property  mentioned 
therein. 

The  following  note  is  appended  by  the  commis- 
sioners to  this  chapter : — 

1  See  Yoorhies'  Code,  9th  Revised  Edition,  1867,  p.  390,  &c. 


ArPEXDix  in.  387 

This  chapter  is  intended  to  supply  the  provi- 
sional relief,  which  is  now  obtained  in  the  action 
of  replevin.  We  think  it  will  he  found  much 
simpler  than  the  statute  for  which  it  is  a  substitute. 

The  most  material  change  which  will  be  ob- 
served, is  in  sections  186  and  187,1  which  provide 
a  means  for  the  defendants'  retaining-  the  property, 
on  giving  an  undertaking  equal  to  that  which  the 
plaintiff  has  given.  This  seems  but  just.  The 
defendant  being  in  possession,  is  presumed  to  be 
rightly  so,  until  the  contrary  is  proved ;  and  if  he 
is  willing  to  give  as  good  security  as  the  plaintiff, 
he  should  be  allowed  to  retain  the  property  during 
the  litigation. 

1  These  are  the  original  numbers. 


INDEX. 


124 

pleas  and  requisites  of, 
form  of,  . 

• 

• 

• 

1 25 
1 25 

plea  of,  to  avowry, 

. 

. 

171 

Abuse  of  distress,  plea  in  bar  of,  to  avowry 

for 

damage 

feasant,     . 

. 

. 

171 

for  rent, 

. 

. 

. 

171 

Act  of 

assembly  of  Pennsylvania,  1705, 
of  21st  March,  1772, 
April,  1779, 
25th  March,  1825, 
24th  February,  1834 
13th  April,  1807, 
22d  March,  1817, 
11th  April,  1848, 

97, 

149, 

152, 

004 

60 

,  248 
113 
158 
158 
83 
83 
274 

Action. 

See  Replevin,     . 

. 

. 

. 

46,  61 

Action  on  the  case  against  sheriff  for  taking  insuflicient 

pledges,  .  .275 
when  maintainable,  27">.  276 
by  whom,  .  .  .  276 
extent  of  sheriffs  re- 
sponsibility, .  277,  278 
declaration,  .  .278 
plea,  .  .  .279 
evidence,  .  .  279,  280 
damages,    .         .  .     265 

Actors,  both  parties  in  replevin  are,         .         .         .  136,  195 

Administrators.     See  Executors. 

Affidavit,  when  necessary, 99,101 


390 


INDEX. 


Agreement  for  lease  not  evidence  of  tenancy, 

Alabama,  replevin  in, 

Alias  replevin, 

Amendment, 

Amends,  tender  of,   . 

Animals,  ferae  naturae, 

young,  born  since  distress 
Arrest  in  replevin,  allowed  in  New  York, 
in  execution,  .... 

Arkansas,  definition  of  replevin  in, 
regulated  by  statute, 
affidavit,  before  issuing  writ,  . 
defendant  entitled  to  have  goods 

jury,      

bond  in,    . 
Assignment  of  replevin  bond,  when  may  be, 
how  and  to  whom  to  be  assigned, 


.  178 

.  48 

.  25 

.  118 

.  189 

.  90 

.  90 

.  100 

229,  233 

.  470 

.  60 

.  99 
valued  by 

.  194 

.  251 

252,  263 

.  264 


when  assignee  may  sue  in  his  own  name, 


when  not,       ..... 
Attachment  against  sheriff  not  granted  for  neglect   to 

take  bond, 275 

Avowant,  is  an  actor, 136 

Avowry,  what  it  is 136,  137 

when  necessary, 127 

when  cannot  be  traversed,  .         .        .         .128 

in  case  of  distress  for  rent,  ....     136 

several  may  be  filed, 137 

at  common  law,  ......     137 

under  statute,  Geo.  2d, 138 

must  state  demise, 143 

name  of  tenant, 143 

amount  of  rent, 143 

assignee  in  reversion,  how  to  avow,  .         .         .145 
how  to  be  made  when  tenant  has  assigned,        .     149 
when  distress  is  for  ground  rent, 

151, 152 

for  cattle  damage  feasant,  .     152 

as  to  part,  non  cepit  as  to  residue,     .        .         .154 


.     264 
264,  265 


INDEX. 


391 


CSS 


Avowry,  by  two  or  more,  .... 

must  state  title  correctly, 
by  joint  tenants,  .... 

by  tenants  in  common, 
when  plaintiff  declares  for  fewer  chattels 

were  taken, 

when  he  declares  for  more, 

when  all  chattels  taken  are  not  replevied, 

surplusage  will  not  vitiate, 

for  taking  goods  oil'  premises  must  show 

are  the  tenants,        .... 
by  executors  and  administrators, 
may  be  for  cause  different  from  the  distr 
parties  to,  . 

pleas  to, 

non  tenuit,  non  demisit,  former 

tress,  no  rent  in  arrcar,  etc. 
that  goods  are  privileged,  . 
nil   halmit   in   tenementis   cann 

pleaded,   . 
eviction  may  be  pleaded, 
payment  of  taxes, 
abuse  of  distress, 
defect  of  fences, 

Bailiff,  replevin  lies  against,     . 

cognizance  by,       .... 

plea  denying  party  to  be, 

evidence  under,      .... 

tender  to, 

infancy  of  one  of  several, 
Bar.     See  Pleas,  Avowries. 
Baron  and  Feme.     See  Eusband  and  Wife. 
Bees,  replevin  lies  for  swarm  of, 

Begin,  right  to, 

Bond,  claim  property.     See  Claim  Property  Bond. 
Bond,  Replevin,  condition  of,  .... 

under  statutes, 


161, 

than 


they 


154 
155 
161 
162 

156 

157 
157 
157 

158 

158 
158 
161 
164 

165 
1G6 

166 

170 
171 
171 
172 


.     113 

.  137 
164,  188 
.  188 
.  1 89 
.     L63 


dis- 

104, 

ot  be 


17: 


90 
174 


.     247 
247,  248 


392 


INDEX. 


Bond  in  Pennsylvania  taken  in  every  case,  .  .  250,  252 
in  Massachusetts  and  Vermont,  ....  250 
in  Missouri,  Arkansas,  and  Kentucky,  .         .251 

sheriff  not  bound  to  pursue  statute  strictly,       251,  252 

when  it  may  be  assigned, 252 

what  will  occasion  forfeiture,  .         .         .         .252 

whether  discharged  by  proceeding,  under  1 7  Charles 

2d, 253,  254 

not  discharged  by  so  proceeding,  .         .         .257 

sureties  liable  for  costs  in  the  replevin  suit,  .     263 

to  whom  to  be  assigned,  .         .         .         .  *      .     264 

when  assignee  may  sue  in  his  own  name,       .         .264 
when  not,        ........     265 

damages  may  be  recovered  to  the  amount  of  pen- 
alty,   265 

value  of  goods  with  interest  from  taking,  and  costs 

of  replevin  suit,  usual  measure  of  damages,  263, 265, 266 
under  special  circumstances  may  be  greater,  .     266 

when  more  than  one  action  brought  on,  proceedings     266 

stayed  in  all  but  one, 269 

.  271 
.  272 
.     275 

.  229 
.  231 
.     232 

.  128 
.     176 

.  27 
27,  28,  29 
.  28 
28,  29 
28,  29 
Penn- 

.       62 
284,  285 


declaration  on,        ..... 

pleadings, 

action  against  sheriff  for  not  taking,     . 

Capias  ad  satisfaciendum  for  plaintiff, 

for  defendant, 
under  17  Charles  2d, 
Case.     See  Action  on. 

Cepit  in  alio  loco,  plea  of.  .... 

evidence  under,    . 

Claim  of  property, 

prevents  deliverance, 
must  be  returned, 
said  to  determine  suit, 
not  so,         .... 
does  not  arrest  proceedings  in 

sylvania, 
proceedings  on  in  New  York, 


INDEX. 


393 


Damages  for  the  plaintiff, 


when  the  goods  have  not 

delivered  to  him, 


Claim  of  property,  in  other  States  disregarded,        .     2S5,  286 
advantages  of  the  Pennsylvania  prac 
tice,  .... 

Claim  property  bond, 

unknown  in  England, 

in  use  in  Pennsylvania  and  Dela 

ware, 

condition  of,    . 

not  a  statutory  bond, 

action  to  be  brought  in  name  of 

sheriff,  .... 

sureties  to  what  extent  liable, 

Code  of  procedure, 

writ  of  replevin  abolished  by, 

Connecticut,  replevin  in, 

Conusance,  when  necessary,      .... 
cannot  be  traversed, 

Cognizance,  what  it  is, 

See  Avowry. 
Consideration,  when  necessary  to  restore  before 

ing  replevin, 

Corn,  replevin  for  when  cut,     .  «. 

growing,      . 

Costs, 

plaintiff  and  defendant  both  entitled  to, 

double,  when  allowed,    .... 

must  be  on  final  judgment,     . 

not  on  an  award  of  arbitrators  appealed  from, 

how  to  be  taxed,     ..... 

when  some  issues  found  for  plaintiff,  and  some  for 

defendant, 

treble,  when  allowed,      .... 

security  for, 

Coverture,  plea  of, 

Crops,  replevin  lies  for  when  distrained, 


286 

58,  281 

281 

281 
282 

282 


283 

283 

63 

64 

47 
127 
128 

136,  137 


rimr- 


.       81 

96,  97 

.       97 

.    223 

223,  224 

221.  225 

225 

.     225 

.     225 


227 

.      22  s1 

.     229 
L64 

96,  97 


been 


56 

54 


394 


INDEX. 


Damages  for  the  plaintiff  when  they  have  been  delivered 

to  him,  .         .         .         .193 

when  not  entitled,  .  .  .132 
for  the  defendant,  .  194,  199,  200 
do  not  include  the  value  of  pro- 
perty, .  .  .  .194,  200 
aliter  in  New  Hampshire,  194,  200 
New  York,  .      194,  200 

Massachusetts,  .  194,  200 
Vermont,  .  .194,  200 
Michigan,  .  .  194,  200 
Tennessee,  .      194,  200 

Arkansas,  .         .194,  200 
Damage  feasant,  avowry  for  taking,         ....     152 
pleas  to  the  avowry,       .         .         .         .172 
Damages  in  the  action  on  the  replevin  bond,    .        .         .     265 
may  equal  the  penalty  of  the  bond,  .         .         .266 

cannot  exceed  it, 268 

include  the  value  of  the  property  when  taken  .  267 
and  interest  from  the  time  of  taking,  .  .  267 
and  costs  in  the  replevin  suit,  .  .  .  .267 
when  replevin  is  of  a  distress  for  rent,  .  .268 
in  the  action  on  the  claim  property  bond,  .  283 
Debt  on  replevin  bond.     See  Bond. 

claim  property  bond.     See  Claim  property  bond 
Declaration  in  replevin,    .         .         .         . 


is  in  the  detinet  or  detinuit,  . 

venue, 

in  Wisconsin, 

in  Tennessee, 

must  state  place  of  taking,  . 

price  of  goods, 

description,  etc.,    . 

charges  defendant  with  having  taken, 

property  not  in  writ,  not  to  be  included, 

damages  to  be  stated,    . 

leave  to  amend, 

in  the  cepit,  .... 

on  the  replevin  bond,     . 


12 


115 
),  121 
116 
116 
116 
115 
118 
117 
120 
120 
120 
120 
121 
271 


INDEX. 


395 


Declaration,  pleas  thereto,         .... 
Deeds,  title,  replevin  will  not  lie  for, 
Delaware,  definition  of  replevin  in  . 

replevin  in,  regulated  by  statute, 
defendant  entitled  to  recover  the  value  in 
judgment  in  replevin  in,   . 
Demand,  when  necessary  before  replevin, 

need  not  be  alleged,    .... 

when  unnecessary,      .... 

Discontinuance, 

Distress,  merely  a  pledge,         .... 

right  to  sell, 

a  pledge  at  landlord's  option  since  2d  W 

not  so  in  Xew  York  and  Pennsylvania, 
Doors,  right  to  break, 


Estray, 83 

Eviction,  plea  of, .170 

Evidence,  under  plea  of  non  cepit,  ....  175,176 
no  rent  arrear,  .  .  .  .179 
non  tenuit,  .         .        .         .177 

non  deinisit,        .         .         .         .177 
tender  of  amends,       .         .         .     189 

property, 189 

when  proceedings  are  under  17  Charles  2d,       .     189 

Execution,  of  the, 229 

for  the  plaintiff, 229 

for  the  defendant,  ......     229 

eapias  in  withernam, 230 

allowed  in  Massachusetts,      ....     235 

not  in  other  states, 235 

under  17  Charles  2d, 232 

Executors  and  administrators  may  bring  replevin,  .         .111 

avowry  by,        .         .         .158 
Exemption,  disregard  of  right  to,  not  remedied  by  re- 
plevin,    83 

False  pretences,  goods  obtained  on,          .         .         .         79,  81 
when  may  be  replevied,      ,    .         .         .81 


.     272 

.       97 

.       47 

.      60 

.     194 

198,  l'r.i 

.       77 

.       1$ 

78,  81,  82 

194,  195 

59 

59 

04 

64,  67 

101 


&  M 


396 


IXDEX. 


False  pretences,  when  not, 

evidence  to  establish, 
Fences,  defect  of  plea  in  bar,    . 
Fieri  facias.    See  Execution. 
Former  distress,  plea  in  bar  of, 
Fraudulent  removal,  avowry  for  rent  after, 


General  issue,  properly  none  in  replevin,          .         .         .  129 
not    guilty  made,    by  statute   in  several 

states, 135 

Georgia,  replevin  in, 47 

Ground-rent,  within  act  21st  of  March,  1772,          .         .  141 

avowry  for, 151,  152 

Hire,  replevin  for  goods  let  on, 79 

Homine  replegiando,  writ  of, 236 

proceedings  under  in  England,      .  236 

in  Xew  York,  .  239 

in  Pennsylvania,  242 


.  89 
.  191 
.  172 

164, 179 
.  158 


Illinois,  definition  of  replevin  in, 
Indiana,  definition  of  replevin  in, 

regulated  b}r  statute, 
Ireland,  writ  of  replevin  in, 
Inquest  of  office, 
Inquiry.     See  Writ  of. 
Insufficient  pledges.     See  Sheriff. 


47 

47 
60 
55 
56 


Joint  owners  must  join  in  replevin,  .         .         .         .112 

tenant  cannot  maintain  against  his  co-tenant,        .     113 

avowries  by, 161 

Judgment  in  replevin, 196 

of  retorno  habendo,  ...        59,  196,  211 

for  plaintiff, 197 

for  defendant, 197 

for  defendant,  where  goods  have  not  been  taken 

as  a  distress, 198 

is  a  judgment  of  retorno  habendo,  .         .199 

sometimes  for  the  value,        ....     200 


IXDKX. 


397 


Judgment  when  the  defendant  has  removed  the  goods,   .     202 

claims  property,  .  .  202 
under  statute  7th  Henry  8th,  .  .  .211 
when  property  is  found  part  in  plaintiff  and 

part  in  defendant, - 

under  statute  17th  Charles  2d,         .         .     208,  21 1 

by  default, 213 

effect  of,  for  plaintiff,  where  the  goods  ha1 

not  been  delivered  to  him,  .        .        .        .213 
under  17  Charles  2d,  does  not  discharge  sure- 
ties,       257 

death  of  one  of  the  defendants,  after  judgment 

on  replevin  bond, 27  1 

pending  suit,    .     27  I 
in  New  York  and  other  states,  plaintiff  en- 
titled to  judgment  of  retorno  habendo,      .     286 
and  the  defendant  to  a  judgment  for  the  value,     281 

jurisdiction, '.'1 

amount  of  rent   arrear,  whether  determines, 

100,  268,  2G9 


Kentucky,  replevin  in, 

regulated  by  statute, 
affidavit  before  writ  issues, 


47 
GO 
99 


Land,  replevin  will  not  lie  for, 

title  to,  may  be  incidentally  tried, 
Lien,  plea  of,     .        .        .        .        . 

not  created  by  distress,  . 
Limitations,  statute  of,     . 


95 
L34 
229 
133 


Maine,  replevin  in, 

effect  of  judgment  for  plaintiff,     . 
Market  overt,  effect  of  sale  in, 

not  known  in  United  Sta1 
Maryland,  replevin  in, 


.  46,  60,  99 

.     213.  217 

.       7^ 

32 

46,213.  217 


Massachusetts, 
Michigan, 

2(3 


46,  GO,  71,84,  86,  91,  99 
47,  60,  L02,  194 


593 


IXDEX. 


Minnesota,  replevin  in, 
Missouri,  "  . 

Mississippi,  "  . 

New  assignment  not  allowed  in  replevin, 
New  Jersey,  replevin  in,    . 
New  Hampshire,  replevin  in,     . 
New  replevin,  allowed  after  non  suit, 


.       47 

.  47,  GO,  99 

.       48 

.     150,  115 
.       47,  102 
46,  99,  194,  200 
59,  63 
New  York,  two  writs  of  replevin  under  revised  statutes,       77 

writ  abolished  by  code, 77 

New  York,  definition  of  replevin  in,  46,60,  63,  84,  86,  99, 100, 124 

168,  286,  288 
Nil  habuit  in  tenementis,  . 
Non  cepit,  plea  of,     . 

evidence  under, 
Non  est  factum, 
Non  demisit,  plea  of, 

evidence  under,    . 
Non  tenuit,  plea  of,  . 

evidence  under, 
No  rent  in  arrear,  plea  of, 

evidence  under, 
Non-suit,  no  bar  to  new  replevin, 
Not  guilty,  plea  of,  . 
Note,  when  necessary  to  restore, 


.     166 

.     129 

.     175 

.      171,272 

.     164 

.     176 

164,  167,  188 

.     177 

.      168,188 

.     177 

58,63 

.     135 

81,82 


Ohio,  replevin  in, 


47,60,  SI,  82,  99,  102 


Parish  records,  replevin  will  lie  for, 

Parties  in  replevin, 

plaintiffs,  executors,  and  administrator 

husband  and  wife, 

act  of  1848,  . 

when  several  cannot  join, 

joint  owners  must  join, 

mere  servant  cannot  be, 

defendants,   . 

to  an  avowry, 
Partner  cannot  maintain  replevin  against  co-partner 


.   97 

111,  112,  113 

111 


111 
112 
112 
112 
113 
113 
161 
113 


IXDKX. 

Pennsylvania,  definition  of  replevin  in.     See  the  volume 

passim, \  : 

Plaint,  replevin  by,   .... 

. 

Pleas  in  replevin,      .... 

.     123 

informalities  when  waived, 

.     123 

in  abatement, 

.     L  24 

property,         .... 

.      127.  I:;  1 

.evidence  under, 

.     189 

general  issue, 

120,  135 

non  cepit,        .... 

12:<.  i:;i 

effect  of, 

.     12:i 

evidence  under, 

.     175 

statute  of  limitations,     . 

.    1 :;:; 

how  pleaded,  .... 

.     133 

lien  how  pleaded 

.     134 

not  guilt}',  when  general  issue, 

.     1 35 

to  the  avowry, 

.     104 

to  the  action  on  the  replevin  bond 

.     272 

Pledges  de  prosequendo,    . 

52 

de  retorno  habendo, 

.        .".2 

Pluries  replevin, 

. 

returnable, 

.      54 

Property,  when  and  how  pleaded,     . 

.     127 

evidence  under, 

.     IO 

Property  bond.     Sec  Claim  Property  Pond. 

Proprietate  probanda.     See  Writ  of. 

Pecordari  facias  loquelam, 

Recaption,  writ  of, 59, 

Rent,  avowry  for.     Sec  Avowry. 

Pent  charge  or  annuity,  not  within  11  Geo.  2d, 

ground,  within  act  21st  March,  1772, 
Replevin,  definition  of,  by  Gilbert,  see  Writ  of, 

Blackstone,  . 
Spelman, 
in  Pennsylvania, 

.Maine.  New  Hampshire,  Ver- 
mont,        .        .        .        .      4S 


. 

. 

.     140 

.     141 

46 

16 

16 

.        47 

400  INDEX. 

Replevin,  definition  of,  in  Massachusetts,  New  York,     46,  71 

Ohio,  Maryland,  Delaware,  .  46 
Kentucky,  Missouri,  Wis- 
consin, ....  47 
Arkansas,  Tennessee,  Michi- 
gan, ....  47 
Indiana,  :  .  .  .47 
Rhode  Island,  ...  47 
New   Jersey,    Illinois,    and 

South  Carolina,  .         .       47 

Virginia,  Georgia,  Connecti- 
cut, and  Alabama,     .         .       47 
Mississippi,  .         .         .         .48 
taking  must  he  unlawful,  when  .         .         .         47,68 
confined  to  distresses  and  attachments,  where  .       47 
lies  only  for  distress  for  rent,  where  .         .         .47 

history  of, 47 

originally  a  justicial  writ,  ....  49,98 

writ  of,  did  not  contain  summons,      .         .         49,  98 

obsolete  in  England, 54 

allowed  after  non-suit, 58 

how  begun  in  Penns3dvania,  .  .  .  .60 
writ,  to  whom  addressed,  ....  60,61 
not  altogether  in  rem,  .  .  .  .  .61 
not  defeated  b}r  claim  of  property,     ...       62 

counter,  when  allowed, 109 

after  non-suit, 64 

for  what  it  will  lie,  .  .  .  .68,  79,  83,  88 
will  lie  against  sheriff's  vendee,  ....  83 
not  against  goods  in  hands  of  sheriff,         .          83,  84 

or  other  officer, 83,  84 

not  so  in  Massachusetts,     .....       84 

will  lie  for  money, 89,  90 

leather  made  into  shoes,  ....       90 
for  a  swarm  of  bees,  .         .         .         .90 

not  the  remedy  for  a  disregard  of  the  exemption 

law,  .         .        .         .'       .         .         .         .83 


i\di:x. 


lnl 


Replevin  for  the  increase  of  animals 

not  for  animals  ferae  naturae,      .        .        .        .90 

for  an  apprentice, 91 

for  goods  taken  beyond  seas,      .         .         .  '.'1 

for  a  ship,  but  not  after  condemnation  as  a  prize,       9  I 

not  for  land, 94 

for  sheaves  of  corn, 96 

not  for  title  deeds, -'7 

for  parish  records, 97 

whether  a  local  action, 104 

may  issue  at  any  time  before  sale  of  distress,  109,  11 0 

bond.     See  Bond, 247 

Replication  to  plea,  164,171 

Retorno  habendo,  judgment  of  effect  of,  .         .         .       59 

see  writ  of.     See  Judgment. 
Return,  what  may  be  made,      ....      102,103,238 
Rhode  Island, 47 


Second  deliverance,  writ  of, 

Set-off,  plea  of,  .... 

Sheriff  might  hold  plea  in  replevin  of  any  value, 
and  of  all  goods  and  chattels, 
must  return  writ, 
when  liable  to  trespass, 
action  against,  for  not  taking  bond, 
for  taking  insufficient  pledges, 
court  will  not  grant  an  attachment, 
action  on  the  case  for,    . 
when  it  may  be  brought, 
may  be  sued  on  his  official  bond, 
whether  liable  in  all  eases  for  not  taking. 
answerable  for  the  sufficiency  of, 
in  England  at  time  of  taking, 
in  Pennsylvania  at  end  of  suit, 

declaration, 

evidence,  etc., 

South  Carolina,  replevin  in,       .... 

Stranger  may  have  replevin,      .... 


52. 

.     165 

.       54 

.       54 

102,  103 

in:,,  lu'.i 

275 

•JT."> 

:!;:> 
275 

276 
276 

277 
277 
277 

27- 
278 
17.  216 

.       84 


402  IXDEX. 

Strays,  sale  of, .83 

Summons,  writ  in  England  does  not  contain,  .         .       98 

aliter  in  the  United  States,      .         .         .         .99 

Sureties  in  replevin, 54 

two  always  taken, 241,  252 

not  discharged  by  proceeding  under  It  Charles 

2d, "•         -257 

liable  for  the  value  at  time  of  taking,  .         .     266 

and  interest, "66 

and  costs  of  replevin  suit,  .        •         •     263,266 

for  the  amount  of  rent,  if  value  equals  that  sum,  268 
if  not  for  value,  with  interest  and  costs,  .  .  268 
if  the  value  is  greater,  then  for  amount  of  rent,  268 
action    against   sheriff  for   taking  insufficient. 

See  Sheriff, 275 

Surplusage  will  not  vitiate  avowry,         ....     157 

Statutes,  of  Marlbridge,  52  H.  3d,  c.  21,  replevin,  plaint,  49,  54 

of  Gloucester,  6  Ed.  1st,  c.  1,  costs,         .         .     223 

of  Westminster,  1st  ch.  17,  breaking  doors,      .     101 

2d,  Pledges,  etc.,    .     49,  52,  64,  247 

7  Hen.  8,  c  4,  avowries,  damages,  execution, 

costs, 211,223 

21st  Hen.  8,  c.  19,  avowry,  tenant,  etc.,       145,  223 
not  in  force  in  Pennsylva- 
nia,        .         .         •         .148 
adopted  in  New  York,      .     148 
32d  Hen.  8,  c.  37,  avowry,  executors,     .         .     223 
4th  James  1st,  c.  3,  costs,       ....     223 
17th  Chas.  2d,  c.  7,  inquiry,  distress,  189,  208,  211, 

223,  253 
whether  in  force  in  Pennsylvania,  .  .210 
judgment  under,  does  not  discharge  surety,  254 
2d  Wm.  and  Mary,  distress,  corn,  64,  96,  179 

4th  Anne,  c.  16,  pleading,  costs,  etc.,     .      137,  226 
11th    Geo.    2d,   c.   19,    distresses,    replevin 
bonds,   97,  138,  141,  146,  152,  158,  172,  224,  247 
of  Pennsylvania,  act  of  1705,  replevin,      .  60,  70 

act  of  27th  March,  1713,  limi- 
tations,     .         •         •         .133 


IXDEX. 


403 


Statutes  of  Pennsylvania,  act  of  21st  March.  1172, 

tress,  replevin  bonds, 
97,  109,  139,  1  10,  L52,  158, 
L80,  224,  248 
3d  April,  1779, replevin 
of  goods   in  execu- 
tion, 
act  13th  April,  1807,  estrays, 
^  I    March,   1817,  horse- 
racing, 
25th    March,    1S25,    dis- 
tress    .... 
24th  February,  1834,  exe- 
cutors, 
llth  April,  1848,  married 
women,  judgments,  1 12,  ^7 1 
revised  of  New  York,        .        77,102,279,287,288 
code  of  procedure,  .         .  64 

of  Massachusetts,  .        .        •       77,2.';.") 


ooq 


83 


158 


158 


Taxes,  payment  of,  ma}'  be  pleaded, 
Tenant  may  not  dispute  landlord's  title, 
in  common,  replevin  b}', 
avowry  b}-,    . 
Tender  of  amends,     . 

to  whom  to  be  made, 
Title  to  real  estate  cannot  be  tried  in  replevin, 

ma}'  incidentally, 
Trial, 


Venue, 

Verdict  under  17  Chas.  2d, 

for  plaintiff  at  common  law 

for  defendant, 

Vermont,  replevin  in,  . 
Virginia,  replevin  in, 


171 

168 

112 

1G1 

72.  7:. 

189 

94 

95 

k:; 


.     116 

,192 
.     1 9-1 

-IT.  I  0 


Withernam,  see  writ  of, 
AVitness,     . 


1-^ 


404 


IXDEX. 


Writ  de  proprietate  probanda, 55,  56,  G2 

one  not  party  to  the  replevin  not  entitled  to,         5T,  107 
pending,  property  remained  with  defendant,  . 


62,  108,  281,  286 

202,  211,  212 

.     299 

.  50,  62,  63 


where  not  used, 

of  inquiry,  where  to  be  issued, 
when  not, 

of  recaption,     .... 

of  replevin.     See  Replevin. 

in  personam,  as  well  as  in  rem, 

when  returnable,       . 

what  sum  prothonotary  may  charge  for, 

how  served,       .... 

how  delivery  must  be  made,     . 

whether  a  justification  in  an  action  of  trespass, 

fees  for, 

of  second  deliverance, 

of  withernam,  .... 
where  not  in  use, 
used  in  Massachusetts, 


100 

100 
100 
100 
101 
105 
101 
.  52,  58,  63 

.  54 
62,  231,  235 

.  235 


THE  E  X  H  . 


AA    000  744  249    4 


